Maryland Injury Lawyers Blog

The BP Gulf Oil Spill Settlement for those directly involved in the harvesting of seafood is complicated. There are a lot of rumors floating around the fishing communities in Louisiana and elsewhere and it is important that those involved in the Gulf Seafood industry understand the facts when it comes to this settlement. HEre are some of the things that you should know:

1. $2.3 Billion Dollars has been set aside to compensate seafood crew, oyster lease holders, boat captains, and commercial fishermen for losses suffered as a result of the Gulf Oil Spill.

2. The categories of compensation are: (i) Shrimp, (ii) Oysters, (iii) Finfish, (iv) Blue Crab/Other Seafood and (v) Seafood Crew. Under each category there are various compensable claims. For example, under "Oysters" a separate claim can be made for oyster leaseholder interest, oyster leaseholder lost income, oyster vessel owner claims, and oyster boat captain claims.

3. This is very important: Seafood Compensation Program Participants must file a single sworn claim form seeking compensation for all claims. You cannot make multiple claims under the seafood compensation program.

4. The Seafood Compensation Program under the authority of the Court and Neutral John W. Perry, Jr.

5. For all participants of the Seafood Compensation Program there will not be an offset for compensation received in connection with the Vessel of Opportunity Program (VOO Program).

6. DEADLINE: The Seafood Program Claim Form must be submitted no later than 30 days from the date that the Court enters its Final Order and Judgment.

7. Claimants who make a claim under the Seafood Program may also make a claim a separate claim for compensation under the Economic and Property Damages Settlement Agreement.

8. A friendly warning---the formulas for compensation under the Seafood Compensation Program are quite complicated. The Seafood Compensation Program is set forth in detail in Exhibit 10 to the Settlement Agreement and it is about 85 pages long. It is my opinion that it is a very good idea to consult with an attorney and/or accountant for the preparation of your claim.

9. Generally speaking, Charter Boat Operators will not be eligible for compensation through the Seafood Compensation Program. Their claims for economic loss would be made outside of this separate funded program. HOwever, if a Charter Boat Operator also is a commercial fishman and earns money off shrimp or oyster, then he could make a claim under the Seafood Program for those losses.

10. Shrimp Boat Captains/Shrimp Vessel Owners can choose anyone of four methods to be compensated (Expedited, Reduced Expedited, New Entrant or Historical Revenue Method). Under the Expedited Compensation Method--Qualifying Shrimp Vessel Boat Owners/Lesees will receive between $104,063.00 and $582,750 depending on the size of their ship. (these amounts include the risk transfer premium of 8.25). Qualifying Shrimp boat captains will receive between $92,813 and $288,750.00 depending on vessel size under the expedited Compensation Method for Shrimpers.

11. Oyster lease holders can make two types of claims. Leaseholder Interest Compensation and Leaseholder lost income compensation. Oyster Harvesters can make a claim for "Historical Revenue Comensation." Eligible oyster leaseholders will receive either $2,000 per acre, $1,000 per acre or $400.00 per acre depending on whether they are in Zone A, Zone B, or Zone C. The formulas used to calculate Oyster Leaseholder Lost Income is complicated in that it looks at benchmark revenue, then adjusts for change in the 2010-2011 season, then uses an oyster loss percentage of 40% and multiplies by a Risk Transfer Premium of 8.75. Final Compensation is hte base compensation amount plus the base compensation amount mutiplied by 8.75.

For more information about the Gulf Oil Spill Settlement and how much compensation you can get visit our website.

If your business suffered losses as a result of the 2010 BP Gulf Oil Spill, and your claim was submitted to the GCCF and they denied your claim, DON'T GIVE UP! The recent settlement between BP and the Plaintiff Steering Committee will allow many businesses that have not received compensation to finally be compensated for their losses. Whereas the GCCF found that many claimed business losses were not the result of the Gulf Oil Spill, the Court Supervised Settlement Process would likely find many of these previously denied Gulf Oil SPill claims compensable. That said, it is upon YOU---THE BUSINESS OWNER or individual who suffered losses to be sure that you apply to the new Court Supervised Settlement Process.

I am not suggesting that everyone who submits a claim will be paid. But I can tell you that there is a lot more flexibility under the new rules in terms of proving that a particular loss was the result of the spill than there was under the GCCF Rules. The documentation requirements and formulas used are a bit complicated and it is a very good idea to consult with a lawyer to be sure that your claim is properly documented and that the appropriate arguments for establishing legal causation are established. A lawyer can also be very helpful in evaluating your BP Claim to determine whether opting out of the global settlement is a viable option or not.

For more information about the Gulf Oil Spill Settlement with BP visit the Goldberg, Finnegan & Mester Webiste.

Our medical malpractice team is currently investigating claims of injuries suffered as a result of the da Vinci Surgical System. We believe that many patients suffering injuries and death as a result of surgeons using the da Vinci Surgical Robot without being properly trained on how to use the device. The cost of surgery using the Davinci system is typically over $1,000 more than traditional surgery.

Injuries caused by the da Vinci system include wrongful death, torn organs, ripped tendons, cartliage and organs.

The da Vinci system works via a remotely operated robot and it supposed to provide a less invasive surgery without as large an incision. Research has established taht a surgeon needs to perform over 100 surgery cases with the da Vinci Robot before being proficient in the use of this device.

The da Vinci robot is very expensive. It costs over $1 Million dollars, and in addition to that it costs a lot of money to maintain each year. With the high costs, hospitals are rushing doctors to perform da Vinci surgeries before they are trained and proficient on the device.

Research is surfacing that indicates that the risks of using hte da Vinci surgical system outweigh its benefits. The ACOG and Kaiser Insurance have openly been critical of the Da VInci system.

If you or a loved one has had surgery with the da Vinci system and suffered a torn artery or torn organ or other injuries, please contact the da Vinci Surgical System Lawyers at Goldberg, Finnegan & MEster, LLC at 888-213-8140.

If you or someone you know took the birth control pill Yaz, Yasmin or Oscella and suffered a blood clot, pulmonary embolism, stroke, heart attack or other serious injury, then you should contact us to discuss your legal rights at 888-213-8140. Bayer Pharmaceutical recently announced that it was settling a group of about 500 cases involving blood clots for $110 Million Dollars. This settlement was announced just as the FDA ordered Bayer to strengthen the warning about blood clots on its birth control pills. Bayer's contraceptives, Yaz/Yasmin/Oscella generated over $1.5 Billion in revenue in 2010. There are currently thousands of lawsuits filed in Federal Court in Illinois alleging that Yasmin caused blood clotting, heart attacks and other serious injuries to young women. The Food and Drug Administration has also indicated that at least 50 deaths are tied to Yaz/Yasmin/Oscella from just 2004-2008.

If you or someone that you care about has suffered a gastrointestinal bleed after taking Pradaxa call us at 888-213-8140. Pradaxa is often prescribed by cardiologists to treat Atrial Fibrillation. It was just approved by the FDA in October 2010. While Pradaxa has some benefits over Coumadin (also called Warfarin), there is evidence that it causes gastrointestinal bleeding at a higher rate--and GI bleeds can be fatal. If you are taking Pradaxa and have gastrointestinal problems--even stomach pains, you should call your doctor immediatley to discuss your concerns. While all anticoagulaents are known to cause bleeding, GI bleeds caused by Pradaxa cannot be treated with a Vitamin K Antidote as bleeds caused by Warfarin are treated. The safety and efficacy of Pradaxa was evaluted in a study called the RE-LY Study. This Pradaxa study invovled 18,000 patients followed for a median of two years and given 150 mg 2x daily of Pradaxa. This dosage was shown to be associated with lower rates of stroke and systemic embolism and a lower incidnece of intracranial hemhorrage. while these are significant advantages over Warfarin, unfortunately PRadaxa was associated with an increased rate of gastro intestinal bleeding. Pradaxa also has a significantly higher rate of adverse events involving GI events (e.g. dyspepsia and gastritis). While these adverse events may not seem like a big deal in and of themselves, the problem is that individuals with these gastrointestinal events are then 3-4 times more likely to develop gastrointestinal bleeding which is a life threatening condition that is difficult to treat. Particular care should be given in prescribing Pradaxa to older patinets, and patients with renal insufficiency. The Pradaxa label was recently changed in January 2012 to tell patients to contact their doctor if htey have GI side effects, but the patient instructions as of 2012 do not. Rather the patient instructions tell patients only to contact their doctor if the side effects bother them or do not go away. We are concerned that the dangers of PRadaxa are understated. Again, if you or someone you love suffers and injury after taking Pradaxa we would like to speak to you. Call us at 888-213-8140.

It looks like Michigan may become the 31st state in the Union without a mandatory motorcycle helmet law for all riders. Michigan passed one of the first laws requiring helmets back in the 1967, repealed it in 1968, and reenacted it in 1969. A recent bill overturning that law just passed the state legislature, and is awaiting signature by the Governor.

The Michigan bill, if enacted, would require helmets only by riders over 21-years-old, and requires motorcycle riders to have $20,000 in no-fault PIP insurance (which would pay for up to $20,000 of the driver's medical bills following an accident).

There are competing concerns: One the one hand, some motorcyclists want the freedom "to ride with the wind in one's hair." On the other hand, proponents of mandatory helmets want to protect people who aren't going to protect themselves, and don't want to have to pay for people who are injured in motorcycle accidents and become burdens on taxpayers.

Some people believe that this is just another example of the government getting its mitts into things that it should leave alone. On the whole, those people believe that if a motorcyclist chooses to ride without a helmet, the only person who could be hurt is the rider.

The reality is, like mandatory seatbelts, motorcycle helmets save lives and often prevent devastating injuries. Before long, guess who is paying the bill for motorcycle riders who are injured without helmets? You and me. What about the family members who depended on the motorcyclists job? If they have to receive public benefits, who has to pay that bill? You and me. Not to mention that a needless death or injury is, quite frankly, needless and often preventable.

The Michigan Office of Highway Safety Planning anticipates that repealing the mandatory helmet law will result in 30 more deaths and 127 more incapacitating injuries every year.

In Tennessee, where the legislature also considered a repeal of the mandatory motorcycle helmet law this year, Vanderbilt University Medical Center's doctors had something to say: don't do it. They expect that a repeal would result in an additional $1.3 million per year for health care in trauma centers alone. That doesn't include the additional medical care required--sometimes the lifetime of medical care required.

So, you can see which end of the debate we are on. We don't like excessive government, either. But this is legislation of common sense, and it protects more that it hurts. We support these rules, and we're glad that our states have them.

All motorcycle riders in Maryland, the District of Columbia, and Virginia are required to wear helmets. This could change--there is momentum in other states to remove that common-sense restriction. If these bills ever come to our state legislatures, we will be at the front of the line to stand up for safety.

For More Information

• Michigan Radio: Michigan helmet law repeal, bad idea?
• Summary of helmet laws in the United States
• American Journal of Public Health: Paternalism & Its Discontents: Motorcycle Helmet Laws, Libertarian Values, and Public Health
• Maryland Motorcycle Accident Lawyers
• Virginia Motorcycle Accident Lawyers
• District of Columbia Motorcycle Accident Lawyers

The big push on distracted driving right now is obviously cell phones and text messages. There probably hasn't been a bigger distracted driving danger to motorists since the advent of the drive-thru.

Whether you are a worker who missed lunch is and is rushing to his next meeting with a hamburger in your lap; a parent of two toddlers trying to keep them in control while steering your car, or a teen or professional trying to send a quick text while driving at 55 mph, we have all been distracted drivers. Hopefully we've been lucky until today. But after today, we should count on more than luck.

Sign A Pledge
April is Distracted Driving Awareness Month. This is the time to make a promise to ourselves and our families. We will not drive distracted. We will stop text messaging while in the car. We will only use a hands-free phone device while driving (and, if you want to promise to not use the phone at all while driving, so much the better!). At a minimum, we will comply with our state's laws on cell phone use (click here to find out what Maryland's laws are). If you want a little boost, sign a petition. There are a million of them online, including one by Oprah (over 423,300 signatures!).

Don't stop at the pledge. The next time you are at a red light, watch the drivers next to you, and the drivers passing in front of you. When I count, there is an average of 22% who are illegally using their cell phones. Clearly, a law prohibiting specific types of cell phone use is not enough. We must make change by social pressure. As kids, informed by our teachers of the dangers of driving without seatbelts, we pestered our parents. Our parents now wear seatbelts. If it's true that most automobile accidents happen within a few miles of home, the lives we save could be our own.

Distracted Driving Statistics (courtesy EndDDD.org)

• 80% of collisions are caused at least in part by distracted driving
• Cell phone use is the cause of 18% of distracted driving deaths
• Drivers who talk on a cell phone are four times as likely to be involved in a crash
• Drivers who text are 23 times more likely to be involved in a crash
• The Department of Transportation estimates that, in 2009, there were at least 5,474 deaths and 448,000 injuries involving distracted driving

For More Information

• AutoWeek.com: List of good links to websites about distracted driving. See their phenomenal advertisements, too.
• Are car voice controls dangerous?
• Maryland Laws on Distracted Driving
• Virginia Distracted Drivers Will Likely Be Required to Give Up Texting
• Poll on types of distracted driving

Most private health insurance companies (as well as state and federal benefits, like medical assistance and Medicare) have an agreement with their insureds: We'll pay medical costs related to your Maryland auto accident, but if you get paid in a lawsuit or settlement, then you have to pay us back. This is called subrogation.

It makes sense, and here's why. Maryland has what's known as the collateral source rule. This is a rule about evidence. It says that if I receive the value of services or goods to compensate me for an accident, I can still recoup the value of the services or goods from the negligent driver.

The Maryland Civil Pattern Jury Instructions state the collateral source rule as it is usually read at trial:

In arriving at the amount of damages to be awarded for past and future medical expenses and past loss of earnings, you may not reduce the amount of your award because you believe or infer that the plaintiff has received or will receive reimbursement for or payment of proven medical expenses or lost earnings from persons or entities other than the defendant, such as, for example, sick leave paid by the plaintiff's employer or medical expenses paid by plaintiff's health insurer.

Here are some examples:

• Example One: Maryland car accident. I go to the hospital, and incur $2,500 in medical bills. My health insurance company, pursuant to their agreement with the hospital, pays $2,000, and the hospital writes of the remainder pursuant to their agreement with my health insurance company. I file a lawsuit against the negligent driver, I am allowed to claim the full $2,500 in medical expenses. The negligent driver cannot tell the jury that I did not actually spend $2,500 in medical expenses.
• Example Two: Maryland car accident. I go to the hospital, and incur $2,500 in medical bills. Because I timely paid my premiums, my automobile insurance policy pays the hospital $2,500 through my Personal Injury Protection (PIP) insurance. That brings my medical expenses down to zero. At trial, I can still ask for the full value of those medical expenses, and the jury may award me $2,500 for my medical expenses, even though I did not make any out-of-pocket payments.
• Example Three: Maryland car accident. I need a leg surgery, valued at $15,000. My brother happens to be orthopedic doctor. He does the surgery for free. At trial, I can still ask for the full value of the medical expenses, and the jury may award me $15,000 for the surgery, even though it did not cost me a penny.

Not all states have the collateral source rule, but it is a good idea for the following reasons:

• Windfall: The negligent driver should not "win the lottery" and avoid paying for the results of his negligent simply because my medical treatment is somehow taken care of. As between the negligent driver and me, the negligent driver should bear the burden of paying for medical expenses caused by the accident.
• Insurance Premiums: If my medical care is paid for by PIP or by my health insurance, it is not really free to me. I pay a premium to carry that insurance, and the negligent driver should have to pay for the medical care.
• Attorneys' Fees: In the American style of lawsuits, each party usually pays his or her own attorneys' fees. This means that in most civil cases like auto accidents, if the injured person gets paid back 100% the value of his claim (medical bills that he had to pay, lost wages, etc...), he is not really "made whole." That is because he probably had to pay a lawyer to recover what was owed to him. He probably paid his lawyer between one-third and 40% of the settlement or verdict. Because of the collateral source, the victim is a little closer to being made whole--the victim gets paid for some amounts that he may not have actually made payments for.

Many automobile insurance companies take advantage of victims who have not hired an attorney--they won't tell victims about the collateral source rule (truthfully, some insurance adjusters don't even know about the rule), and will try to convince victims that they can only recover for their out-of-pocket medical expenses, like co-pays and maybe deductibles. Victims who settle for those amounts are not getting the full value of their claims.

Back to health insurance: because most health insurance companies require victims (who get money in a settlement or verdict) to pay them back for medical expenses, it is fair for the victims to be able to recover the value of those medical expenses from the negligent driver.

One good reason to hire an attorney for an auto accident case is that the attorney will usually be able to negotiate with your health insurance company. The goal is to twofold: (1) to make sure that the insurance company's lien doesn't include medical treatment that was unrelated to the accident; and (2) to reduce the insurance company's lien by at least one-third. The reduction in the lien also makes sense--the victim had to pay an attorney to get his money; it doesn't make sense for the health insurance company to get his money without the same "cost."

Contact Us
If you have questions about how much you must pay your health insurance company after a Maryland, Virginia or D.C. automobile accident, call our attorneys at Goldberg, Finnegan and Mester at 1.888.213.8140, or contact us online for a free consultation.

For More Information

• More on PIP and other Maryland car insurance
• PIP in Bicycle Injury Accidents
• Medical Treatment after a Maryland Automobile Accident

Maryland has made regular and substantial changes in the law on cell phone use by drivers. Cell phone use is getting the same attention that drunk driving historically has, and rightfully so--it is a major cause of injury-producing and sometimes fatal Maryland automobile accidents. The rule right now for most drivers in Maryland (there are different rules for commercial interstate truck drivers; and drivers under 18 are not allowed to use cell phones for any purpose while driving) is that phone calls must use a hands-free device, and writing or reading e-mails or text messages is prohibited.

National Statistics

• Cell phone use is responsible for 1.6 million crashes per year (28% of all crashes) (National Safety Council)
• More than one-third of drivers admit texting or e-mailing while driving in the previous month (AAA Foundation for Traffic Safety)
• Using a cell phone while driving quadruples your risk of crashing (AAA Foundation for Traffic Safety)

Maryland Statistics (between October 2009 and September 2011)

• 587 warnings/379 citations for driving while texting
• 4,021 warnings/5,227 citations for failure to use hands-free phone while driving
• 2010: 496 traffic fatalities

History of the Current Laws

• October 2009: Maryland Legislature prohibits the writing or sending of text messages while operating a motor vehicle in motion or in the travel portion of a roadway. Violations are misdemeanor crimes punishable by a fine of up to $500.
• October 2010: Maryland Legislature prohibits drivers from talking on cell phones without a hands-free device. Violation was a secondary offense, meaning that lawbreakers could only be pulled over if they were violating some other law at the same time (for example, speeding). First offenses are punishable by $40 fine, and subsequent offenses are punishable by $100 fine. There are no points for a first offense (unless the violation contributed to an automobile accident, in which three points are assessed); and one point for subsequent offenses.
• October 2011: Maryland Legislature makes the writing, reading or sending of text messages or e-mails a primary offense. First offenses are punishable by $70 fine, and second offenses are punishable by $110 fine.

Your Choice
Our Maryland auto accident lawyers have seen first-hand the destruction and devastation that can be caused by distracted driving. We encourage all drivers to put the phone down while driving, and to follow Maryland law. If you believe that you have been the victim of a distracted driving accident, contact us at 1.888.213.8140, or online for a free consultation.

For More Information

• Virginia Distracted Drivers Will Likely Be Required to Give Up Texting
• National Safety Council

Last week the Maryland Court of Appeals examined a school bus versus tree accident in District of Columbia v. Singleton. Here's the setup:

The plaintiff and his son were riding on a school bus for a field trip to Six Flags. The Plaintiff fell asleep and awoke when the bus was airborne, right before it crashed into a tree. The plaintiff's son didn't know what happened. The plaintiff didn't know why the bus left the road.

The case proceeded to trial--the plaintiff wanted to prove his case using a legal doctrine known as res ipsa loquitur, which all law school students know is Latin for "the thing speaks for itself" (sidenote: the classic res ipsa case that all law students learn about is from 1863 where a barrel of flour rolls out of a building and hits a pedestrian; picture courtesy of www.realmagick.com). What that means is that the plaintiff believed the very fact that the bus was involved in a single-vehicle accident means that it is most likely true that the bus driver was negligent and caused the collision. The plaintiff's case was short--he testified that he didn't know how the accident happened, and he put on some witnesses to talk about the extent of his injuries.

The trial court dismissed the case, holding that the plaintiff's case could not rely on res ipsa. The case was appealed to the Court of Special Appeals, which reversed the trial judge's decision. The Court of Special Appeals ruled that "the failure to maintain control of the vehicle presents a prima facie case of negligence." The Court of Special Appeals agreed with the Plaintiff--if the bus left the road, the automatic assumption is that the bus driver was negligent. If something else caused the collision, it was up to the bus driver to raise it as a defense.

The case was again appealed, this time to Maryland's highest court, the Court of Appeals. The Court of Appeals reversed again, agreeing with the trial judge. The rhetoric of the opinion casts aspersions on the plaintiff for failing to come up with more information--it is difficult to know if the Court would have come out the same way if the plaintiff presented other inconclusive evidence. The Court seemed to want the plaintiff to present testimony from some of the eyewitnesses, the other bus passengers, the emergency responders, or even the police report. The reason none of that was presented, presumably, is because none of it shed any light on the situation. My bet is that the other passengers weren't paying attention; the eyewitnesses probably only saw the crash, and didn't know if there was any other reason for it; the police report may not have had any admissible evidence (police reports are not usually admissible, except for very limited purposes).

I suspect that, even if the plaintiff presented a whole host of inconclusive evidence, the Court would have ruled against him. It cited a Connecticut case where a passenger sued the estate of the driver (who probably died in the collision). There, the court ruled that, because of a lack of evidence, res ipsa did not apply. This is counterintuitive, because res ipsa is supposed to apply precisely when there is no other evidence of cause or fault.

Here is what is required to use res ipsa in a Maryland car accident:

• The accident is of a kind that does not ordinarily occur absent negligence;
• The accident was caused by an instrumentality exclusively in the defendant's control; and
• The accident was not caused by the plaintiff.

So, this case "clarifies" the state of law--if a plaintiff wants to prove a single-car collision using res ipsa, here is a checklist of things that might make the Court more likely to believe the plaintiff:

• Call other witnesses, even if they have nothing to add. The very fact that a witness did not see any reason for the collision, by itself, may help the judge or jury to understand that there is unlikely to be any other cause of accident. In particular, the plaintiff should get testimony from any witnesses who can comment about whether they say other cars on the road near the crashed vehicle.
• Get the police report into evidence, or at least try to get it in. At a minimum, the report may clarify that there were no witnesses, or that the police officer saw no other reason for the collision.
• Call the investigating police officer to talk about whether there was any information (statements from the defendant or other witnesses) about how the accident happened. The police officer should also testify about the weather conditions, the skid marks (evidence that the driver was going too fast, perhaps?), the nature of the road, the condition of the vehicle after the accident (was there a pre-collision tire blow-out?) and the speed limit.
• Present information about the condition of the vehicle: show that the vehicle had been well-maintained, and some defect was not likely the cause of the collision.
• Call the driver: The plaintiff should consider calling the driver to testify in the plaintiff's case-in-chief, even if he does not know why the accident happened. Care should be given, though, if the driver is blaming the collision on something other than negligence.
• Get the driver's medical records to prevent the driver from claiming that a sudden medical emergency was the cause of the collision.

My sense from the opinion is that the Court would have felt better about plaintiff's claim if he had explained the lack of other evidence about the crash. It's not clear if that would have been enough to get the case to a jury, but it would have given the plaintiff a better chance.

There are two types of defenses available in most automobile accident lawsuits: "I wasn't at fault"; and "You aren't that badly hurt."

The first, "I wasn't at fault," deals with liability. The question is whether the other driver was responsible for the collision because she somehow broke the rules--crossed a center line, caused a rear-end collision, or pulled out in front of another vehicle that had the right-of-way. This defense deals with whether a victim can win his case. It is not used in all auto accidents--sometimes the other side will admit that she caused the collision.

The second defense, "You aren't that badly hurt," is often heavily relied on when liability is admitted, but it can also be used when liability is contested. Generally, the other driver will tell the judge or jury that "I wasn't at fault, but even if I was, the plaintiff should not get the money he is asking for."

For this reason, it's important for our lawyers (and for defense lawyers) to get a complete medical history from the plaintiff. Let's say the plaintiff has a lower back injury from an automobile accident. Here is what we need to know:

• Have you ever had a back injury before the accident?
• Did you have any other back injuries after the accident?

It's really simple, but the problem sometimes arises that people don't always remember all other injuries they had. We've all been in this situation--we completely forget to mention something in a conversation, and it doesn't hit us until 30 minutes later. Part of a lawyer's job is to jog their client's memory. Here are some of the questions we often will ask our clients at the outset of the case:

• Have you ever had a lawyer for any reason?
• Have you ever made a claim against any insurance company?
• Have you ever been to the doctor because of pain in your back?
• Who is your primary care provider? How long have you been seeing him/her?
• Do you have any disabilities?
• Have you ever received money from the Social Security Administration?
• Have you ever been in an automobile accident?
• Have you ever had an on-the-job injury?
• Have you ever been in a slip-and-fall?
• Have you ever had surgery?
• Have you ever been to a physical therapist?
• Have you ever been to an orthopedist (bone and muscle doctor)?
• Have you ever been to a chiropractor?
• Has a doctor ever prescribed you a massage?
• Have you ever filed a lawsuit?
• Have you ever made a workers' compensation claim?
• Has your work ever sent you to a doctor?

There's certainly some overlap with some questions, but it's hard to know what will trigger a long-forgotten memory. There are two reasons that plaintiffs' lawyers, and defense lawyers, try so hard for this information.

First, when a victim does not "fess up" about prior injuries, it gives the defense lawyer an opportunity to call him a liar. If you forgot about that minor back injury ten years ago, even if it resolved after a couple of weeks of physical therapy, the defense lawyer will try to convince the judge or jury that you were deliberately hiding it. If they believe that, they won't believe anything else you say.

Second, prior or subsequent injuries give the defense a chance to blame a victim's problems on something else. The argument is that accidents before or after the one in the lawsuit are the real cause of injury. To some extent, this may also allow the defense lawyer to paint the victim as someone trying to win the "lawsuit lottery"--trying to convince a judge or jury that their prior injuries were caused by the defendant driver.

Because we want to do the best we can for our clients, in most cases we try to get additional information to figure out if there is anything else out there. Here are some resources we use:

• Old medical records: records from the primary care provider often give details about aches and pains that may be long-since forgotten. Also, it is sometimes worth it to get information from the plaintiff's health insurer about prior medical visits.
• AISG form: the insurance companies send information about claims to a central database. We locate that information through the American Insurance Services Group. For a small fee, we can see what they know. This can be useful because some claims may refresh our clients' memories about other accidents they were involved in. Also that information is sometimes inaccurate, and knowing about it before trial gives us an opportunity to prevent problems before they occur.
• Lawsuit records: Lawsuit records are available from Maryland, Virginia and the District of Columbia. These records can help us to determine if there have been any other lawsuits where physical injuries may have been involved.

Defense lawyers think that we try to cover this type of information up, but the opposite is true. The hardest case to bring is one where the plaintiff lied about other injuries. In most cases, we can distinguish those other injuries from the injuries in a current case. We recommend being honest with defense counsel about prior and subsequent injuries. Now, we won't volunteer to give the defense all medical records and history where it isn't relevant--our clients are entitled to a degree of medical privacy. For example, in a back injury case, the defense lawyer doesn't need to know about the plaintiff's recent hand surgery. It is only with full information that we can properly advise our clients about what should and should not be disclosed in their automobile accident cases.

Contact Us
If you've been injured in a Maryland, Virginia or District of Columbia automobile accident, contact us at 1.888.213.8140, or online.

Pradaxa is a blood thinning medication prescribed and marketed to patients with a heart condition called non-valvular atrial fibrillation--it is used to reduce the risk of strokes, blood clots and systemic embloisms. Pradaxa is similar to a drug called Coumadin (aka Warfarin) which has been on the market for several decades. The FDA is currently investigating reports of severe bleeding events in patients taking Pradaxa. In fact the FDA Website indicates that it is evaluating post marketing reports of serious bleeding events in patients taking Pradaxa. The FDA website says that the:

FDA is working to determine whether the reprots of cleeding in patients taking Pradaxa are occurring more commonly than would be expected, based on observations in the large clinical trial that supported the approval of Pradaxa.

You can read the entire FDA Safety Review of post-market reports of serious bleeding events with the anticoagulant Pradaxa (dabigatran etexilate mesylate) by clicking here.

Pradaxa is being aggressively marketed to doctors and physicans are likely being urged to prescribe Pradaxa instead of Coumadin because, apparently Pradaxa does not require the on-going blood tests/lab monitoring required by Coumadin patients. However, the risks of Coumadin are already well-known and well studied. The risks of Pradaxa seem to be unknown at this time, and the drug has not been on the market for long enough to know the exact level of risk. There is concern from the on-going clinical trials that the risk of bleeding events in older elderly patients may be higher for those taking Pradaxa compared with Coumadin. Despite this, since Pradaxa's approval in October 2010 about 1.1 million Pradaxa prescriptions have been dispensed to about 371,000. patients. It should also be noted that there is an antidote to overcoagulation by Coumadin/Warfarin (vitamin K), yet there is apparently no known well-studied antidote to bleeds caused by Pradaxa.

If you or someone you love has suffered an injury, bleeding event, or death after taking Pradaxa contact Goldberg, Finnegan & Mester, LLC at 888-213-8140.

I came across an article recently about doctor discipline in Minnesota. This caught my eye because our medical malpractice lawyers try cases all over the country (where we are moved in specially by a local attorney to prosecute that case). For example, we've prosecuted cases in 17 other states, and had a recent $4 million verdict in a North Dakota birth injury case.

The Minnesota Star Tribune article, Doctor Discipline: State Fails to Offer Full Disclosure, emphasized that Minnesota is at the bottom of the barrel when it comes to reporting physician problems to the public. In particular, Minnesota citizens are not told about jury verdicts that conclude doctors are negligent. Nor are they told about discipline in other states where doctors are also licensed. Compare that to Massachusetts, where there are over 600,000 yearly visitors to the Board of Registration in Medicine website, and where information is readily accessible about a doctor's:

• Education, training and experience
• Malpractice claims paid for the last 10 years
• Hospital discipline for the last 10 years
• Criminal convictions for the last 10 years
• Disciplinary actions by the Massachusetts Board of Registration in Medicine for the past 10 years

What Massachusetts does not provide is the number of lawsuits filed against physicians, or the dollar amounts for malpractice cases. That's a proper decision--on average, that information is not likely to be useful to consumers who want to know whether they should choose a particular doctor. Not all lawsuits lead to a finding of malpractice, and an exonerated physician should not bear the stigma of public reporting about the existence of the lawsuit. Likewise, a jury's finding of negligence is sufficient evidence of malpractice, and the dollar amount does not add anything to the fact of negligence. The dollar amount may include things like lost wages, which would depend on the patient's profession, and does not bear on the degree of negligence.

Compare this to the Minnesota Board of Medical Practice, where the following information is available:

• Education, training and experience
• Disciplinary action
• Self-reported criminal convictions

In defense of this limited reporting, the executive director of the Minnesota Board of Medical Practice stated that consumers would be confused if the board posted malpractice cases without providing additional data that would help people understand whether a doctor's malpractice history was above or below state norms. I disagree. Patients are smart enough to look at instances of malpractice and use that information to open a dialogue with physicians about the care they are to receive. It might alert patients to potential problems, and may encourage them to ask about specific complications. Playing "hide-the-ball" with a person who may be going under the knife seems wrong.

What Physician Information Is Available In Maryland?
Christian Mester, who is chair of the Firm's medical malpractice department, was appointed by the Governor of Maryland in 2008 to serve on the Task Force on Discipline of Health Care Professionals and Improved Patient Care. Maryland's state medical board does a lukewarm job--it's not great, but it's not one of the worst, either. One of the biggest problems is the delay in making disciplinary information publicly available, as well as the delay in investigating allegations. Those were two of the issues tackled by the Task Force and the Task Force's recommendations were presented to the Maryland judiciary. In the end, any change must come from the Maryland judiciary before this process benefits patients. Marylanders can access the following information about their health care providers from the Maryland Board of Physician Quality Assurance:

• Education and experience
• Known disciplinary actions by any state medical board for the past 10 years
• Medical malpractice verdicts and arbitration decisions for the past 10 years
• Medical malpractice settlements for the past 5 years (if there are 3 or more settlements of $150,000 or more)(this is a rather short time period, and practically doesn't offer much useful information)
• Criminal convictions involving moral turpitude

Also, in Maryland, before filing suit against a health care provider for negligence in a Circuit Court, all actions must be filed in the Health Care Alternative Dispute Resolution Office ("HCADRO") of Maryland. So, if you are deciding on a new doctor, you can call HCADRO and see if that doctor has ever been sued before. The number for HCADRO is (410) 767-8200.

Choosing the Right Attorney for You
If you believe that you or someone you love was injured as a result of medical malpractice, then you should talk with an attorney to determine whether what happened was preventable. If there is a case, then that lawyer and law firm will be working for you for the next two years or more. Thus, you need to make sure that you are comfortable with the lawyer you have retained. In doing your due diligence, ask friends for recommendations; do research on the internet, including the lawyer's website; call several law firms and see with whom you are most comfortable. This is a really important decision.

The most important reasons to choose any medical malpractice law firm are experience and a proven track record of success (although past success cannot guarantee future outcomes). Goldberg, Finnegan & Mester is proud of the lawyers in its medical malpractice department. They are highly experienced and great at what they do. More importantly, they are involved in the community and truly want to help other people. GFM has two nurse attorneys, Jean Jones and Maria Dawson, who bring years of medico-legal experience to the trial table. If you have questions about a possible medical malpractice lawsuit, contact us at 1.888.213.8140, or online for a free consultation. Call our Firm and let us see if our experience can help you. We welcome the opportunity to assist you.

For More Information

• Graph on Reasons for Doctor Discipline in Minnesota
• Minnesota Star Tribune: Doctors Who Err Escape Penalties
• Maryland Case Judiciary Search: You can look up your doctor here to see if there have been any Maryland civil or criminal cases involving your doctor. Keep in mind that the existence of a lawsuit, absent a verdict, does not necessarily mean the doctor did anything wrong.

Debates about the ever-increasing costs of healthcare range from the influence of medical malpractice lawsuits, to the performance of "defensive" medical procedures by doctors, to the bilking of the American public by insurance companies and drug manufacturers. Whatever your feeling on those issues, the bottom line is that doctors are responsible for creating standards of care within their profession. Simply, the standard of care is the minimum level that a physician must adhere to in order to be practicing medicine reasonably.

Problems arise when doctors do not address what the standard of care should specifically be in a particular area - this allows for some doctors to practice medicine in that area in a potentially unsafe manner. This appears to be the case regarding breast cancer surgeries. A New York Times article, "Breast Cancer Surgery Rules Are Called Unclear," evaluates the problems in the medical profession in this area of medicine.

A lumpectomy, the most common form of breast cancer surgery, is where only the tumor and some surrounding tissue are removed. Apparently, doctors don't agree on what to do after the initial lumpectomy based on the pathology results. A study by Dr. Laurence McCahill, Variability in Reexcision Following Breast Conservation Surgery, indicates that 22.9% of women had a repeat surgery. The pathology reports in half of those cases reveal that there were no cancer cells left behind, yet doctors went in again to remove more tissue.

The study also revealed that 14% of patients who had positive pathology reports did not undergo another surgery. This appears to be a clear failure to treat an existing problem. The longer a cancer remains in the body untreated before discovery, the more likely that the cancer will continue to grow, with worsening prognosis for the patient.
One of the problems is that doctors don't agree on how much tissue surrounding the tumor should be cut out. Some doctors require only that no cancer cells touch the outer boundary of the excised tissue. Other doctors demand up to five millimeters of clean cells between the cancer cells and the outer margin. One doctor's research indicates that requiring a larger barrier of clean cells is not safer for patients. Another issue involved in the fray is that doctors are concerned about leaving breasts as intact as possible for cosmetic reasons.

But what about the patient? What is in her best interest? There are two main concerns for women with breast cancer. The first is that, when possible, all cancer cells should be removed. No matter what rule is declared, safety is the first priority and providing the best chance of survival. The second issue is the additional trauma to women diagnosed with breast cancer. Every test and every repeat surgery causes mental and emotional stress during an extremely tough time. Not only must doctors treat the physical problems, but they must also bear in mind the additional mental and emotional trauma that may be caused by their decisions. If there is a way to reduce the percentage of repeat surgeries, while ensuring the removal of all cancer cells, it should be established as the standard of care. Until that time, involve the patient in which method is best for her. We are glad that physicians are studying and researching this issue, but it seems to us that if things are currently up in the air as to how exactly best to proceed, give the patient the choice: provide her with the information, the results of the studies, and allow her to make an informed decision about how she believes is the right way to proceed with her care. We think that is only proper.

Contact Us
If you have questions about breast cancer or a cancer misdiagnosis, contact our medical malpractice lawyers, including two nurse-attorneys, at 1.888.213.8140, or online. We handle medical malpractice lawsuits across the United States, and we have a proven track record (see our verdicts and settlements)(past success is no guarantee of future results).

For More Information

• Are the Poor More Likely to File Medical Malpractice Lawsuits (blog post examining, in part, the costs of healthcare
• Goldberg, Finnegan & Mester's Medical Malpractice Website
• National Cancer Institute (for more information on cancer treatment)

The recent settlement between BP and the Plaintiffs Steering Committee is great news for those who have been struggling to get their claims paid through the GCCF. The settlement is not perfect, but all in all it is a good deal for the plaintiffs and it will do the most good for the greatest number of people. It is also important to keep in mind that this is the first settlement and there will likely be other settlements with Haliburton, Transocean and others. Some important points about the settlement are:

1. Settlement is uncapped. The only exception is that $2.3 Billion Dollars has been earmarked for the "Seafood Program" for compensation for commercial fishing industry, fishing vessel owners and deckhands.

2. Most qualified candidates will receive higher settlement offers through this settlement than they would have received from the GCCF.

3. There are technically two class action settlements: One for Economic and Property Damages and one class for Medical Injuries.

4. There will be a 6-8 week transition period, and then the GCCF will be closed down and the court supervised Settlement Claims Program will begin.

5. A $57 Million dollar marketing fund has been established to promote tourism and Gulf Seafood.

6. Offsets and amounts already received from BP/GCCF will be deducted after the enhahcement for potential future damages.

7. Each claimant who is a potential class member can choose to opt out of the settlement and pursue their claim in court.

8. Those with GCCF Final Payment offers that have not expired can receive 60% of the offered amount without signing a release (this is GREAT NEWS). This means that all outstanding non-expired GCCF offers are protected but claimants can receive the benefit of the new settlement.

9. More businesses and individuals will be compensated through this settlement program than through the GCCF. For example categories of damages not covered by the GCCF that will be compensated include (i) Loss of Use and Enjoyment of Real Property, (ii) property damage caused by oil spill clean up activity, (iii) losses from sale of real property in coastal regions, and (iv) oil and clean up related damage to real property in wetlands areas.

10. There will be more flexibility in choosing how damages are calculated. Claimants can generally choose to use 2009, or an average of 2008 and 2009 or an average of 2007, 2008 and 2009. Claimants can then choose any 3 or more consecutive months of 2010 (May-December) as their loss period. Unlike the GCCF pre-spill growth trends will also be considered.

11. There will be a Risk Transfer Premium (RTP) paid to account for factors unique to each claim type.

12. The Medical Oil Spill Settlement will provide lots of funding for needed medical and mental health services in Gulf Coast communities.

13. Medical Compensation will be paid for specified medical conditions, periodic medical consultations (for 21 years), back end litigation option for later manifested illness, and $105 Million Gulf Coast Region Health Outreach Program.

14. For certain clean up workers and some other coastal residents no poroof of medical treatment will be required.

15. Covered symptoms include certain respiratory injuries, eye injuries, skin, gastrointestinal, and neurological conditions. Even heat strokes will be compensated.

16. Those with oil or dispersant related illnesses that manifest in the future can sue BP without proof of fault (but punitive damages are waived as part of the settlement).

17. The GCCF Quick Pay Option will expire on May 7, 2012.

18. On March 8, 2012 Judge Barbier issued an Order Creating a Transition Process. transition.pdf

For more information about your Gulf Oil Spill claim visit gfmjustice.com