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Referring lawyers

Do you have a client whose case requires the experience of skilled litigators who handle many jury trials each year? At Berman & Simmons, we regularly work on referred cases. We value our relationships with the many attorneys and law firms that ask us to help on their accident and personal injury cases. When you refer a case to us, you and your client benefit. We have a long history of trying cases in the courtroom and turning difficult, complex accident and personal injury cases into high-value settlements.. more...

Summer 2008

In This Issue:

• Taking on Medical Malpractice Cases
• Evaluating The Nursing Home Case
• A Closer Look
• Noteworthy
• In Other News
• About the Firm

Taking On Medical Malpractice Cases
By Julian L. Sweet, Esq. and Craig A. Bramley, Esq.

Medical malpractice cases in Maine can be costly and difficult. They involve complex medical issues, require expensive expert witnesses, are subject to the pre-litigation screening panel system, and are fiercely defended by Maine’s most skilled and experienced defense attorneys. While these obstacles to recovery are all real, they can be overcome with careful analysis at intake and the use of a sophisticated approach to case development and trial presentation. We used such techniques to obtain a verdict of $7.96 million from an Androscoggin County Superior Court jury in the case of Emond v. CMMC, et. al last October. This case is illustrative of the issues that arise in many medical malpractice cases

Intake
The intake process in medical malpractice cases involves multiple steps. A complete and thorough evaluation of a medical malpractice case often requires months to complete, an understanding of the relevant medicine and a substantial budget (for expert review). However, an attorney's threshold analysis is simple: Are the damages substantial enough to warrant continued investigation? The economic realities of medical malpractice cases make it difficult to pursue cases that involve small injuries. Most cases that involve death, serious injury, or permanent disability warrant evaluation by an attorney with medical malpractice experience.

When Odysseus Emond was born on April 26, 2002, he did not breathe spontaneously and was floppy. He began to suffer seizures within hours of his birth and within months was diagnosed with a severe brain injury that would leave him completely dependent on others for the rest of his life. Less than two days before her labor was induced, Sasha Emond underwent an advanced imaging study and was told that she was carrying a healthy baby. Though neither Sasha nor her family attorney could determine the exact nature of the negligence, the case involved substantial damages and merited further investigation. Read more...

Evaluating The Nursing Home Case
By Benjamin Rogoff Gideon, Esq.

With the aging population, retirement of the baby boomers and increasing population of nursing homes, Maine lawyers undoubtedly will face a growing number of questions from clients concerning negligence, abuse and neglect of nursing home residents. Elders who reside in nursing homes are among the most vulnerable members of our population. As lawyers, we have a responsibility to help champion and protect them. To do so, we must understand the duties and obligations of the nursing homes and be willing to fight to ensure that those duties and obligations are met.

Nursing Home Cases Are Not Medical Malpractice Cases
It is a mistake to view a nursing home case as a medical malpractice case. Medical malpractice cases typically concern discrete acts of negligence, such as a failed surgery or missed diagnosis. By contrast, many nursing home cases do not involve a discrete act of negligence. Rather they involve a pattern of sub-standard care, abuse or neglect. A nursing home resident does not become malnourished or dehydrated in a single day. Bed sores do not develop and grow into Stage IV flesh wounds overnight. Even falls often occur as a result of a pattern of poor planning, monitoring or supervision of the resident.

In many ways, the lack of a discrete malpractice event makes nursing home cases more challenging than pure medical negligence cases. The abuse and neglect may be a product of poor delivery of care by numerous staff and other medial providers, including the resident’s treating doctor, the nursing home administrator, nurses, CNAs, physical or occupational therapists, speech pathologists, wound care doctors, dieticians and others. Consequently, while medical malpractice cases typically focus on the conduct of one or more individual health care providers, the emphasis in nursing home cases often is on the care-delivery system as a whole, including the policies, practices, and business decisions of the nursing home company. Read more...

A Closer Look:
Recent Developments in Underinsured Motorist Law
By Paul F. Macri, Esq.

Two underinsured motorist cases were decided by the Law Court this spring that should be of interest to any trial lawyer. They are Jipson v. Liberty Mut. Fire Ins. Co., 2008 ME 57, 942 A.2d 1213 and Molleur v. Dairyland Ins. Co., 2008 ME 46, 942 A.2d 1197.

Jipson: Offset Against Third-Party Limits Upheld

In the first case, the Law Court finally addressed a question about uninsured motorist insurance coverage which, despite being a very basic issue, the Law Court had never addressed. The question was whether, despite offset language in his UM policy, a plaintiff is entitled to collect the full amount of his damages or the total of his liability and UM limits whichever is less or whether the statute compels a setoff of the liability limits.

In answering this question, the Law Court rejected a full compensation view of the statute and opted for the narrower view it has followed in earlier cases—namely, that the object of the UM statute is only "to provide an injured insured the same recovery which would have been available had the tortfeasor been insured to the same extent as the injured party." The Law Court reaffirmed its reasoning in Levine v. State Farm that "characterized UM coverage as 'gap coverage'." In Levine, the Law Court concluded that, if it adopted the full compensation rationale,

the economic risks of injury in motor vehicle accidents would shift entirely to the underinsured vehicle coverage carrier. The expense involved in providing uninsured/underinsured vehicle coverage would increase, and an insurance product originally required by the Legislature to protect against those who fail to carry adequate insurance coverage would be treated as if it were the primary source of coverage notwithstanding the tortfeasor’s own coverage.

The Law Court added that accepting the plaintiff’s position would also result in disparate treatment of persons injured by uninsured motorists and those injured by underinsured motorists, with the latter getting a better result than the former.

An Opening If The Policy Lacks Similar Offset Language?
Although the Jipson Court purported to be putting this issue to rest once and for all, it left the door open for a different outcome in cases involving different policy language. The UM policy in Jipson specifically required an offset. The Law Court’s holding did not address whether an offset would be required absent such offset language in the policy. Accordingly, there may be cases in which a plaintiff’s UM recovery is not offset against liability limits, where the UM policy does not explicitly require such a setoff (as some still do not).

Molleur: Can Collect Under Liability & UM Parts of Same Policy With Underinsured Joint Tortfeasor

In Molleur, a less philosophical but no less important issue was considered. Typically, UM insurance policies contain provisions prohibiting the plaintiff from collecting under both the liability and the UM parts of the same policy by requiring a setoff for any amount paid under the liability portion of the same policy or excluding a vehicle insured under the policy from the definition of an underinsured vehicle.

Ms. Molleur was injured in a multi-vehicle accident while riding a motorcycle with her then husband. She collected from his liability policy as well as those of the other drivers. Not being fully compensated, she then made a claim under the UM coverage of her husband’s policy, which provided for a setoff for "any amount paid under the liability insurance of their policy." The Superior Court rejected her claim, basing its decision on Bourque v. Dairyland, in which the Law Court upheld the validity of policy language that excluded "a car we insure" from the definition of uninsured motor vehicle.

The Law Court vacated, distinguishing Bourque on the ground that it involved only a single tortfeasor while Ms. Molleur’s UM claim was not against her husband but against a different tortfeasor. The Law Court analogized the case with Tibbetts v. Maine Bonding, in which it had held that a UM insurer was not entitled to a setoff for monies paid to the plaintiff by a joint tortfeasor.

These two cases demonstrate that the Law Court has followed a discernible pattern in interpreting the Uninsured Motorist Statute. Although it has generally held that the purpose of the statute is to provide a plaintiff the same recovery he or she would have gotten if the tortfeasor had liability limits equal to the plaintiff’s UM coverage, as opposed to a full recovery, it has interpreted the statute liberally within the limits of that rationale.

Taking On Medical Malpractice Cases, Cont'd.

To determine whether we could succeed with a medical malpractice claim, we obtained and organized all of the records of mother and child and had them reviewed by the appropriate experts—an obstetrician, obstetrical nurse, and pediatric neurologist. While this process is expensive and time consuming, it should be completed prior to the filing of a medical malpractice notice of claim (unless there are imminent Statute of Limitations deadlines). The choice and handling of experts is critical. Some physicians interested in participating as experts in malpractice cases possess flaws that can cost the claimant's attorney thousands of dollars and result in disaster. Some experts are overly enthusiastic about a particular theory of the case or simply willing to tell the retaining attorney what they think he or she wants to hear. Others fail to keep up to date on the relevant medicine or are willing to testify in areas outside of their expertise. When we retain an expert, we make clear that we are seeking a true understanding of the underlying medicine, as well as the liability and damage issues.

Panel Process

The Maine Health Security Act requires claimants in medical malpractice cases to participate in the "mandatory pre-litigation screening panel" process before filing suit in Superior Court. After a discovery period that focuses on the medical care at issue, the case is presented to a panel comprised of a practitioner of the relevant specialty, a lawyer, and a panel chair. The panel decides on the issues of violation of the applicable standard of care, whether the violation caused damage to the claimant and comparative negligence. The extent of damages is not at issue during the panel phase. Regardless of the panel result, a claimant can file a complaint in Superior Court, but a unanimous decree in favor of one party may used by that party at a trial of the matter. Discovery conducted during the panel phase may be used in the Superior Court phase. The peculiarities of the panel process create significant differences in how medical malpractice cases progress, beyond just the additional time and expense. The two distinct litigation phases including the panel hearing give the parties the opportunity to fully understand their opponent's case and, with experience and a clear understanding of the medicine, exploit their opponent's weaknesses. Conversely, a party has the opportunity to replace an expert witness who was ineffective during the panel phase with a different expert, or to designate additional experts, in the Superior Court.

The panel process is not always a reliable predictor of results at trial. While the panelists may bring experience and expertise not found in a jury pool, they also bring biases that are different than those of jurors. In the Emond case, a panel that included a nurse-midwife and a former medical malpractice defense attorney issued a decree finding unanimously against Sasha and Odysseus Emond on both liability and causation.

Technology at Trial

Medical malpractice cases present unique challenges at trial. The underlying medicine can be complex and the most important facts can be buried in a voluminous medical record. Jurors are skeptical of the claims of plaintiffs and sympathetic towards health care providers. On some issues, jurors will hear from two well-trained experts who will express opposing opinions. The evidence and attorney statements in the Emond case were presented in just nine trial days. We accomplished this by focusing on the important medical issues, covering the crucial evidence efficiently, and streamlining our presentation using modern trial-presentation software.

A trial attorney must be prepared to examine and cross-examine witnesses using the medical record, demonstrative exhibits, depositions, hospital procedures, and medical literature, including the witness's own writings. In the past, this was accomplished exclusively through the use of paper copies. The current state of the art is electronic presentation. In Emond, we scanned and prepared thousands of pages of medical records, deposition and panel hearing transcripts, expert reports, photographs, demonstrative exhibits, and even videos. Any single page could be called up and presented to the jury on a large projection screen within seconds and without scripting the presentation. These capabilities allow for the rapid and seamless presentation of evidence from disparate sources. During both direct and cross-examination, the jury was able to see the documents as they appear in their original form and to comprehend how the evidence fit together. When they received the original exhibits for deliberation, they were looking at pages they had seen many times over the course of the trial. Jurors who have grown up with television can be kept interested and involved when relevant information is presented in both auditory and visual forms simultaneously. The ability to keep the presentation moving quickly over days of trial is essential with jurors who have become accustomed to the fast pace of modern media.

The task of recovering fair compensation for the victims of medical negligence is a difficult one. In order to succeed, the claimant's attorney must use careful screening and planning, the best expert witnesses, and advance trial presentation techniques.

Evaluating the Nursing Home Case , Cont'd.

Standards and Evidence
How do you determine whether there is a nursing home claim worth pursuing? How do you prove the case at trial? In part, the answers to these questions are contained in the extensive regulatory framework which governs the delivery of care in nursing, residential care, assisted living and hospice homes. Nursing homes (and these similar types of care facilities) are among the most heavily regulated of all medical settings, including hospitals.

These regulations, which help establish a minimum standard of care, address a wide variety of topics, including quality of care, staffing, governance and operation, hydration and nutrition, reporting and record keeping, care planning, pressure ulcer prevention and treatment, and prevention of resident falls and elopement. These regulations and the accompanying guidelines are used by government surveyors to inspect and enforce compliance, and provide a roadmap of the minimum standards of care for every nursing home case.

With those regulatory standards in mind, it is time to investigate the facts. Important sources of factual information include the testimony of the resident (if alive), family and friends, the resident’s chart and other records maintained by the facility, and the testimony of current or former employees. Former employees are often the best source of information about what really went on at the facility. Was there sufficient staff to meet resident needs? How often were residents actually turned and repositioned in bed? What did staff do when a resident did not eat or drink enough? How were at-risk residents monitored to prevent falls, wandering or elopement from the facility?

Another important source of information is the survey information from annual compliance and individual complaint surveys conducted by the Department of Health & Human Services. Annual surveys catalogue all deficiencies observed by the surveyor, rank them in order of severity and require that the home provide a plan to correct the deficiency. Complaint surveys are performed in response to a specific complaint or an event (such as a drug-overdose or incident of physical abuse) which the nursing home is required to report. These surveys and the home’s response to violations identified by them demonstrate notice of problems on the part of the nursing home and provide a wealth of insight into the overall quality of care. It is good idea to request survey information for a several-year period leading up to the incident.

Finally, most nursing homes in Maine receive at least some portion of their revenue from taxpayer money in the form of Medicare or Medicaid (MaineCare) reimbursements. The cost report documents submitted by the nursing home for such reimbursements are publicly available and provide an important source of information. The cost reports show the services billed by the nursing home. They also show how the nursing home allocates its resources. Does the nursing home argue that it lacks the funds necessary to hire more staff while siphoning off substantial funds for profits?

Categories of Cases
Any set of circumstances in which a resident has suffered from sub-standard care, abuse or neglect should be investigated. Most nursing home cases fall into one of several categories. These include pressure ulcers (bed sores); failure to adequately nourish or hydrate a resident; physical abuse or improper use of restraints; negligent administration of prescription medications; failure to notify a physician or family member of a significant change in condition; failure to properly develop and implement a plan to meet the resident’s individual care needs; failure to supervise or monitor the resident, resulting in falls, wandering, elopement or other accidents; and failure to protect the resident from the hostile or belligerent acts of another resident.

Conclusion
By law, nursing homes are responsible for ensuring that their residents are able to achieve the highest quality of life practicable in light of their health, medical and social needs. When a nursing home’s failure to meet its obligations results in serious harm or death to a resident, it is up to us as lawyers to hold the nursing home accountable.

Nursing Home Practice

Berman & Simmons will be enhancing its ability to handle significant nursing home malpractice claims. All nursing home cases will be handled by a team of attorneys with expertise in both nursing home and medical malpractice cases. Attorneys in the practice group have handled cases involving pressure ulcers, inadequate nutrition and hydration, failure to plan for a resident’s individual needs, failure to supervise or monitor, improper administration of prescription medications, and many other types of abuse, negligence and neglect. If you would like our assistance in reviewing a potential nursing home matter, please call or email Ben Gideon at bgideon@bermansimmons.com.

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