There have been many changes to Joe’s legal practice.  After joining Gage Mathers, he expanded the scope of his practice so the focus was no longer limited to medical malpractice.  This has allowed Gage Mathers to help victims of various forms of negligence obtain justice and fair compensation for their injuries.

Our medical malpractice work will still focus on catastrophic injuries and holding negligent health care providers accountable for the devastation they cause.  However, we have found success in helping medical malpractice victims whose cases were not considered big enough by other lawyers, or were thought to be too complex.  Some of that success comes from presenting compelling client stories and, we believe, awakening the humanity within risk managers, insurance adjusters, and defense lawyers.  Believe it or not, but many of them want to do the right thing and feel good when they are able to help people.  We are happy to help them feel good about themselves if they are helping our clients.

Not every case presents a compelling story, and most will not be successful.  But that does not mean malpractice victims should not try.  That does not mean malpractice victims should just give in to the new, miserable norm caused by their injuries.  It means malpractice victims should reach out to experienced malpractice lawyers to see if their story is compelling enough to awaken a sense of humanity and obtain a little justice.

Being a lawyer is tough.  Being a medical malpractice lawyer can be daunting.  You need to know the rules of civil procedure.  You need to know the law–not just laws specific to medical malpractice, but laws that govern torts, liens, insurance, evidence, privilege, and potentially even bankruptcy.  You must be able to advocate on paper and you need to know your way around a courtroom.  You need to be able to handle clients.  You need to be able to handle experts.  You need to understand strategy.  Beyond that, to be an effective medical malpractice lawyer, you must understand applicable medicine.

Whether you are new to medical malpractice law or been practicing for decades, you’ve likely searched for tips or tools designed to make you a better lawyer.  There is an abundance of websites that offer practice tips, suggest tech gadgets, promote tech services, and try to be helpful.  Here are the 5 tools that I think every medical malpractice lawyer should consider using.  They are not essential tools, but ones I think are helpful.  Please note, this is my opinion and the services below have not asked me to suggest them and I have no financial arrangements with them.

1.  TrialPad

TrialPad might be one of the most powerful apps that a medical malpractice lawyer can use on an iPad.  The app provides an easy to learn way of presenting information to a judge, jury, clients, or anyone for that matter.  You can easily import exhibits and other documents from Dropbox, Box, Citrix ShareFile, and other systems.  You can also transfer files from a computer by using iTunes and connecting your iPad to the computer with a USB cable.  For us old Windows users, you can import a .zip file (under 1 GB), which lets you create folders and subfolders on your computer, and then maintain those folders when you import into TrialPad.

You can control what the audience sees, zoom in and out to focus on specific information, and immediately black out the audience screen if an objection is made.  TrialPad includes annotation tools, such as highlighting, a callout tool, and notes, which you can save.  You can also create Key Docs, which allow you to create annotations ahead of time.  Additionally, TrialPad is great with trial exhibits, allowing you to keep track of exhibits that were admitted into evidence.  These features are great for presenting medical records, literature, and other technical documents.  Feel free to read articles and reviews on the internet to better understand how TrialPad can help you.

2.  Radiology Assistant

Radiology Assistant is an educational site of the Radiological Society of the Netherlands.  The site offers imaging and related information covering virtually every system in the body.  Its navigation is broken down by area of the body.  I use this site for the education.  I want to understand what the images show.  In some cases it proves invaluable during depositions.  It may also help me find normal images to better understand the client’s problem.  Most medical malpractice lawyers rely heavily on their experts for this sort of thing.  And that is fine.  But there will be instances when you don’t have the time to contact your expert, or you want to save the expense.  The information in this site may also enable you to speak more intelligently with your expert.

When it comes to trial evidence, you should have experts interpreting medical images for you.  The expert should print out key images and label them with identifiers.  The expert should provide the foundation for the comparison with normal anatomy.  However, for all other purposes, this is a great site.

3.  Patient Safety Network

The Patient Safety Network (PSNet) is a product of the Agency for Healthcare Research and Quality.  The Agency hopes to build bridges between research and practice.  PSNet provides the latest news and essential resources on patient safety.  It offers weekly updates of patient safety literature, news, tools, and meetings).  It also hosts all AHRQ Morbidity and Mortality Rounds, providing expert analysis of reported medical errors, Cases and Commentaries, as well as Perspectives on Safety.  There are also interactive learning modules on patient safety.

This site is a great way to stay up-to-date on issues impacting your practice.  Frankly, whether you represent health care providers or victims of medical negligence, one goal of medical malpractice cases should be to make health care safer and improve quality.

4.  Embodi3D

Visual exhibits are very effective at conveying complex medical information.  I am a big fan of medical illustrations and animations, but nothing beats being able to hand a juror or witness a 3D model.  How cool is it to give the jury something to see, handle, manipulate, and better understand the anatomy, injury, and your perspective.  Embodi3D allows you to create anatomically accurate and patient-specific models.  Difficult to explain findings on a CT or MRI are quickly conveyed to a lay person through a 3D printed model.

5.  Outside experts.

Knowing where to go for information helps set great lawyers apart from good ones.  There is nothing wrong with asking others for help.  In fact, having outside resources available to you can have a powerful impact on your practice.  Therefore, network, connect with other medical malpractice lawyers outside your firm, and join/participate in industry list servs.  Whether it is on a local or national level, connecting with other professionals medical malpractice lawyers gives you access to a larger knowledge base.

Knowledge is power.  The 5 tools discussed above should provide you with a ton of knowledge and an ability to present your knowledge in an effective manner.  As always, feel free to contact me if you think you have a medical malpractice matter that could use my expertise.

The Washington Post reported today that lobbyists for doctors and their insurers met regularly in D.C. to draft an overhaul of the nation’s medical malpractice laws.   As I’ve discussed, the resulting legislation proposed strict limits on damages for the people most victimized by preventable medical errors.   The goal?  To peddle a false narrative to increase profits.  Even more disturbing is that lobbyists were able to rapidly shepherd their bill to House passage with virtually no input from the public or members of Congress.

The revolving door of excuses for this legislation lack any foundation in fact.  Proponents of these laws, who benefit financially from the lobbying efforts, currently argue “frivolous lawsuits are driving up the cost of health care.”  Truly “frivolous” lawsuits are rarely successful and rarely ever filed by attorneys.  A cap on damages will have little to no effect on “frivolous” cases.  The effect of such foolish legislation will only impact meritorious cases–cases where the health care providers were negligent.   Surgeons have maimed patients, set them on fire in the OR, burned them with lasers, left instruments and other objects inside of patients, amputated the wrong extremity, and prescribed medications that killed or severely injured patients.  Money is the only compensation our justice system can offer these victims.

Asking insurance companies if malpractice awards are too high or increasing costs is like asking a dog if it is hungry.  The answer is always “yes.”

There were no facts to support prior claims that malpractice cases caused physician shortages.  So that excuse has faded away.  Now it is about costs because people’s health insurance premiums are increasing.  Perfect scapegoat for a new false narrative.

If there is a shortage of physicians, why not look for the real cause?

First, how about student debt?  Few very intelligent people, who will make competent physicians, want to lug around $250,000 worth of inescapable debt.   Medical schools are extremely expensive.  After four years of medical school, a year of internship, 2-7 years of residency, and (possibly) 2-5 more years of a fellowship, I imagine the debt can balloon to almost $500,000.  How about lowering the cost of medical school or providing debt relief?

Second, wages tend to be lower in rural areas.  With hundreds of thousands of dollars in debt, what medical student can afford to practice in a rural area?  Also, do you think rural doctors welcome new health care providers to their community, doctors who will poach their revenue stream?

Third, there are numerous problems with privatized Medicaid.  Many insurers are slow to pay doctors and hospitals, and they block tests and medical care for patients.  Hospitals and doctors offices cannot stay open if they are not being paid timely.  Hospitals and doctors offices cannot safely treat patients if treatment is being denied.

Fourth, I think the facts speak for themselves.  States that enacted medical malpractice caps and legal obstacles to fair compensation have not seen drops in malpractice insurance premiums and health insurance premiums continue to rise.

In the end, it is all about money and profits.  Not patient safety.  Not patient control of their health care.

Health care costs increase for several reasons: inflation, research and development, increased salaries for doctors and nurses, the need for insurance companies to appease investors, charitable care, and location-based factors.  Now we can add questionable executive management decisions.

In NY, Bronx-Lebanon Hospital found questionable ways to boost revenue to pay executives fat salaries, bonuses, and perks.  This taxpayer-supported institution — whose construction project is in investigators’ crosshairs over alleged links to mob kickbacks — pushed moneymaking surgeries such as hip and knee replacements.

Marketing a hospital to draw patients requiring high-return surgeries is allowable.  However, Bronx-Lebanon Hospital specifically hired a doctor with a record of alleged poor outcomes to help boost revenue.  The hospital lavishes its chief of orthopedics, Dr. Ira Kirschenbaum, with hundreds-of-thousands-of-dollars in bonuses despite four deaths and numerous preventable injuries that occurred after he arrived in 2008.

Dr. Kirschenbaum received a $314,210 bonus in 2014 and a $180,940 bonus in 2015, according to Bronx-Lebanon’s tax filings.  The bonuses were in addition to his $851,000 salary.

Several hospital employees notified the state medical disciplinary panel to complain about patients recently injured under Dr. Kirschenbaum’s care.  The NY Post reported that Dr. Kirschenbaum denied allegations of negligence and said the OPMC cleared him in earlier cases.

High volume practices and surgeons who practice for many decades will have adverse outcomes that are not the result of negligence.  Concern about Dr. Kirschenbaum arises from the way he was hired.  Hospital CEO Miguel Fuentes hired Dr. Kirschenbaum as a division chief without consulting Dr. John Cosgrove, who was then chief of surgery and would have overseen Kirschenbaum.  Dr. Cosgrove did not have a chance to vet Dr. Kirschenbaum.

In other words, the hospital’s CEO made a business decision to hire Dr. Kirschenbaum without investigating his safety.  Preventable medical errors always increase health care costs.  The increases come from trying to fix the problems caused by the doctor’s negligence.  Hospitals and doctors have ways to code the additional care to make it appear as a normal complication of the patient’s condition.  These costs are then passed on to taxpayers through Medicare and Medicaid, and other people with health insurance through increased premiums.  The costs increase further when hospitals create an incentive system to entice doctors to schedule additional, and possibly unnecessary, clinic visits, or perform surgeries with questionable indications.  These are the real causes of increased health care costs, not malpractice lawsuits.

Hospital executives often enjoy hefty salaries and bonuses, as do doctors.  Just look at the nations highest salaries (9 out of the top 10 are in health care) or jobs of the nation’s top 1% (health care providers make up the second largest portion).  There is nothing wrong with making a lot of money, but we should think twice before we believe hospitals and doctors are struggling because of malpractice lawsuits.

The questionable practices discussed above have the potential to cause catastrophic problems.  If you think you or a loved one was injured from similar questionable practices, then contact us.

Take care of your heart, and your heart will take care of you.  A piece by Bill Gifford in Men’s Health discusses How Your Heart Can Break.  As the 17th-century British physician William Harvey noted, “Every affection of the mind that is attended with either pain or pleasure, hope or fear, is the cause of an agitation whose influence extends to the heart.”

Your Heart is a Very Sensitive Organ

Your heart beats roughly 70 times a minute, 100,800 times a day, and 36,792,000 times a year.  That’s a lot of work.  Your habits, diet, emotional state, stress levels, and even your environment impact your heart.  “Most men are familiar with classic risk factors like blood pressure and cholesterol, but they tend to miss the mental, emotional, and even spiritual issues that relate to the heart,” says Dr. Mimi Guarneri.

Mr. Gifford’s piece does a great job of creating awareness about how the heart works.  The print version of the article takes it one step further.  It highlights the importance of watching your health.  For instance, diabetes is considered early-stage heart disease because chronically high blood sugar spurs inflammation that can weaken the heart.  For men, there are early warning signs of a future heart attack or stroke, like erectile dysfunction, which can be caused by atherosclerosis buildup in the small vessels leading to the penis.

Although heart disease may often be thought of as a problem for men, heart disease is the most common cause of death for both women and men in the United States.  Women are more likely than men to have heart attack symptoms unrelated to chest pain, such as:

  • Neck, jaw, shoulder, upper back or abdominal discomfort.
  • Shortness of breath.
  • Pain in one or both arms.
  • Nausea or vomiting.
  • Sweating.
  • Lightheadedness or dizziness.
  • Unusual fatigue.

These symptoms can be more subtle than the obvious crushing chest pain often associated with heart attacks.

Key Takeaways

Your heart is like its own city-state.  It has its own electrical system.  It has its own circulatory system.  It is concerned about the environment, including noise and pollution.  It is influenced by the quality of blood coming in.  It is influenced by the quality of oxygen being exchanged in the lungs.  It responds to neurochemicals.  It self-regulates.

Although the heart is very resilient, it cannot survive too much abuse.  It will give up on you if you give up on it.  Becoming aware of symptoms and risks can help protect you.  Making several lifestyle changes to reduce the risk of heart disease are recommended:

  • Quit or don’t start smoking
  • Exercise regularly.
  • Maintain a healthy weight.
  • Eat a healthy diet that includes whole grains, a variety of fruits and vegetables, low-fat or fat-free dairy products, and lean meats.  Avoid saturated or trans fat, added sugars, and high amounts of salt.

Be proactive.  These lifestyle changes should be supported by your doctors.  You doctors can help you control your risk factors.  Your doctors should also be aware of the early warning signs of heart disease and alert you when they develop.  Therefore, make sure your doctors keep tabs on your heart and your health.  If they don’t, then contact us.

Medical malpractice cases come in various forms.  Operating on the wrong extremity.  Leaving a piece of equipment inside a patient after surgery.  Failing to diagnose an illness.  These are among the most-common types of medical negligence taking place in America today.  This post looks at the premature closure of a case, which can result from bad assumptions.

Case Review

A 45-year-old male with poorly controlled diabetes, was admitted to the hospital with vomiting and weight loss, signs of a fever, and cough.  The ER doctor’s impression was hypoglycemia, weight loss due to diabetic gastroparesis, and upper respiratory infection.  Blood tests confirmed an elevated white blood cell count, and blood cultures revealed gram-positive cocci in chains.  However, the patient was discharged on antibiotics before the final culture and sensitivity report was available.

The patient followed up with his PCP a week later.  He had less abdominal pain, but no appetite.  Three weeks later, he returned with complaints of swollen legs.  Later that same day, he went to the ER with difficulty breathing, fever, and heart rate of 120.  He was diagnosed with mitral and aortic valve endocarditis.  Turns out, the results of the prior culture demonstrated Streptococcus viridans–so his antibiotics needed to be switched.  He underwent valve replacement, developed severe left ventricular decompensation, and died from end-stage congestive heart failure before a heart transplant could be performed.


Medical experts who reviewed the case concluded the PCP should have done an aggressive workup to rule out endocarditis when he first received the blood culture results.  The chains of gram-positive cocci should have alerted the doctor of the possibility of Streptococci, and treatment should have been started at that time.

The patient’s initial improvement likely led the PCP to premature closure.  The PCP prematurely stopped the diagnostic process and did not order an additional workup because of another psychological phenomenon called optimism bias.  The PCP focused on the improved abdominal pain and believed there was minimal risk of a negative outcome; he likely convinced himself of the potential for a positive outcome, even if that potential was slim.

The negligence here is that it is essential to review final blood culture results, and sensitivity reports, and not assume the patient’s initial improvement is a predictor of a successful outcome.  Arguably, the PCP never engaged in critical thinking and relied on the fact that most patients will not end up with permanent injury or death.

Depending on when the final culture and sensitivity report would be available, the ER doctor might have been negligent for prematurely discharging the patient with an ineffective treatment or for not making sure the patient knew the results of the blood cultures showed the antibiotics he was given would not be effective against his infection.

This case study, again, comes from the nation’s largest physician-owned medical malpractice insurer, The Doctor’s Company.  The Doctor’s Company has a vested interest in eliminating preventable medical errors. So do I. Too many people have their lives catastrophically impacted by negligent doctors and health care providers. No one should have to suffer because of another person’s carelessness.

Contact us if you would like to have experienced medical malpractice attorneys analyze the facts of your case to determine if medical negligence occurred.

The use of pain medication in the U.S. is alarming–doctors write 71 opioid prescriptions per 100 people.  In 2015, drug overdoses accounted for 52,404 deaths in the United States, 63.1% of which involved opioids.   The medical malpractice risk arises because these powerful pain medications are highly addictive, even after short-term use.  An estimated 2.0 million people in the U.S. are addicted to prescription opioids.

A recent report from the Centers for Disease Control and Prevention (CDC) found that doctors in the U.S. are prescribing opioids less often.  However, the CDC reports the number of opioid prescriptions is still a lot higher than it should be–more than triple where it was 1999.   Also worrisome is that the length of prescriptions has increased from an average of 13 days to 18 days.

The dangers of opioid use and addiction are well-known to doctors.  Doctors frequently receive warnings about prescribing opioids.  Presumably, this contributed to the reduction in prescriptions.  Despite reductions in prescriptions, opioid-involved overdose-death rates continue to increase.  One reason, apparently, is inconsistent practice patterns and a lack of consensus about appropriate opioid use.  However, Doctor’s have help.

CDC’s Guideline provides evidence-based recommendations about opioid prescribing.  The recommendations are for primary care clinicians treating adult patients with chronic pain.  The Guideline recommends the use of non-opioid therapies, such as acetaminophen, nonsteroidal anti-inflammatory medications, exercise therapy, and cognitive behavioral therapy for chronic pain.

Awareness of the problem is the first step in protecting patients.  Patients need their doctors to create safe, personalized plans for their pain management.  Doctors need to be more careful in prescribing opioids and use safer drugs, physical therapy, and other modalities to alleviate pain.  Using the CDC Guidelines could help doctors avoid medical malpractice when treating their patients’ pain.

Contact us if you would like to have experienced medical malpractice attorneys analyze the facts of your case to determine if medical negligence occurred.

We are happy to share the news that the 1st District Court of Appeals in Wisconsin ruled that a cap on noneconomic damages in medical malpractice cases is unconstitutional because “it imposes an unfair and illogical burden only on catastrophically injured patients, thus denying them the equal protection of the laws.”

Ascaris Mayo’s doctors negligently failed to treat a septic infection resulting in the amputation of all four limbs.  The ER provider included infection in his differential diagnosis and admitted at trial that Mayo met the criteria for Systematic Inflammatory Response Syndrome; however, neither the MD or the PA told Mayo about the diagnosis or the available treatment.  Instead, Mayo was told to follow up with her personal gynecologist for her history of uterine fibroids.  She developed a septic infection from the untreated infection.  She became comatose and eventually became minimally responsive until she was transferred to another medical facility.  Ultimately, the sepsis caused nearly all of Mayo’s organs to fail and led to dry gangrene in all four of Mayo’s extremities, necessitating the amputation of all of Mayo’s extremities.

This sad story had a somewhat happy ending when a jury held the negligent health care providers accountable.  The jury awarded $25.3 million in damages, including $15 million in noneconomic damages and $1.5 million for her husband’s loss of companionship. 

Defense lawyers moved to reduce the noneconomic damages award to $750,000, the maximum compensation for such damages allowed under state law.

The Milwaukee County judge and appeals court both declined to reduce the award.  The Court of Appeals noted the cap allows full awards for less severely injured patients but results in reduced awards for the catastrophically injured, which amounts to an equal protection violation.

Lawmakers included language with the cap that said it was designed to encourage doctors to practice in Wisconsin, contain health care costs by discouraging “defensive medicine” and providing certainty in damage awards as well as protect the solvency of the state compensation fund.  However, the Court of Appeals noted the cap doesn’t achieve any of the Legislature’s stated goals in adopting it. 

After the Wisconsin Supreme Court struck down a lower cap, in 2005, the number of doctors participating in the compensation fund has increased every year and there’s no data indicating a cap has any effect on physician retention anywhere.  Doctors don’t face any personal liability thanks to the state compensation fund, which would appear to eliminate the need for defensive medicine.  Also, medical malpractice claims against the fund have decreased since 2005.  “We are left with literally no rational factual basis in the record before us which supports the legislature’s determination that the $750,000 limitation on noneconomic damages is necessary or appropriate to promote any of the stated legislative objectives.”

This goes along with what I have said in the past, medical malpractice lawsuits are not the problem–we need to hold dangerous doctors accountable for the injuries they case and fully and fairly compensate the victims of medical malpractice.

The U.S. House of Representatives passed a bill that would victimize medical malpractice victims and protect the health care providers who injured them.  If there is a silver lining in all this, it might be that H.R. 1215 passed by the slimmest of margins.  But I am not comforted by this.  Not until the U.S. Senate slaps some sense into the U.S. House.

I could go on all day about the frequency with which people are injured by medical malpractice.  I could go on all day about the numerous victims who cannot find a lawyer to take their case because the ultimate recovery will barely cover litigation costs.

Please don’t delude yourself into believing there are doctors lining up to gratuitously provide their expert services to these victims.  Expert fees are the largest cost of medical malpractice cases, usually driving the total costs of these cases over $125,000 and, in some cases, as high as $250,000.

Oh, and please don’t delude yourself into believing doctors who commit medical malpractice, or their liability insurers, are rushing to settle cases before costs pile up.  I have a case with clear negligence that is now in its third year of litigation because of the scorched-earth defense.

Let’s discuss a typical case that occurs all across the United States and see the impact of H.R. 1215.

A 60-year-old retired husband, and father of two, goes into the hospital for a routine thyroid surgery.  The surgery goes well, but a blood vessel is mistakenly cut and left open.  Postoperatively, the husband’s neck is swelling.  Blood is collecting in the limited space available in the neck.  His doctors and nurses do not intervene as he suffocates from the collection of blood crushing his windpipe.  His family watches helplessly as he suffocates to death.

Since the husband was retired, there is no lost income.  Since he died, there are no future medical bills.  So, the family is limited to grief and suffering from the loss of their loved one.  H.R. 1215 would limit the amount the wife and her two kids can recover to $250,000, regardless of how many doctors and nurses were negligent, regardless of the egregiousness of their conduct.

H.R. 1215 would limit the attorneys’ fees to around $75,000 (which ends up being around $150/hr–about half of what the defense lawyers are paid!).  Therefore, even if the litigation costs are kept low, at $100,000, the wife and kids would collect $75,000.

Let that settle in.

The wife loses her husband of 30+ years, the two kids lost their father, and collectively the three of them have to split $75,000.

Does that sound fair?

People need to be aware that medical malpractice lawsuits are not the problem with our health care system.  The problem is careless doctors and the system that protects them.  Prior posts have touched on different aspects of this issue.  This post adds some additional thoughts.

Caps on non-economic damage awards and other hurdles for injured patients have become prolific across the U.S. in the last two decades.  Yet, numerous studies and reports have shown that “tort reform” does not prevent sharp increases in insurance premiums, even though insurers enjoyed a slowdown in their payouts.  One from 2003.   An article about another study from 2003One from 2011.  The problem, besides the growing number of malpractice victims, was partly the increase in payments made by the federal government to fix preventable errors.  The federal government realized the potential savings from the elimination of medical errors was undeniable.

So, the Center for Medicare & Medicaid Services (CMS) stopped paying for certain hospital and doctor errors, and created a financial incentive for hospitals to embrace patient safety.  Certain expensive but “reasonably preventable” secondary conditions would not be reimbursed by CMS, and could not be billed to patients.  Previously, CMS rewarded hospital errors with larger reimbursements, by paying them an extra amount to treat various preventable complications that developed as a result of negligence.  Sadly, this measure did not show real results in reducing harm. A November 2010 report released by the Office of the Inspector General at the U.S. Department of Health and Human Services (HHS) found that one in seven Medicare patients are injured during hospital stays and that adverse events during the course of care contributes to the deaths of 180,000 patients every year.  These adverse events cost the government and taxpayers an additional $4.4 billion annually.

The hallmark of the American Civil Justice System, embodied in the U.S. Constitution, is trial by jury.  It is a valuable system that includes many checkpoints for the dismissal of frivolous lawsuits.  It also includes several checkpoints to protect the system from unreasonable or excessive damage awards.  All without so-called “tort reform” measures.  As Dr. William Sage commented, “The major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.”

When plaintiffs with real injuries fail to receive adequate compensation from the hospital or doctor who injured them, they are further victimized by our health care system.  Many times, their injuries are permanent.  Many times, their injuries impact every aspect of their lives.  Many times, they become despondent because they can no longer do the things they enjoyed.  By artificially capping medical malpractice damage awards, the government shifts the costs to the taxpayers and away from the negligent doctor.  Even worse, when doctors are insulated from liability, they have less incentive to be safe.

I will step down from my soapbox…for now.