In an awful decision this week in a wrongful death medical malpractice case, the Michigan Court of Appeals overturned a lower court’s ruling which would have prevented ex parte communications between defense counsel and a Plaintiff’s treating physician from being entered into evidence, because HIPAA privacy rules already prohibit medical malpractice defense lawyers from meeting ex parte with plaintiff's physicians even if the Plaintiff has executed a HIPAA authorization.

This Michigan Court of Appeals opinion relies on the fact that the Plaintiff executed a HIPAA authorization for the defense counsel. In Maryland, there is no mechanism to require a Plaintiff to waive HIPAA rights because a lawsuit has been filed. Based on a quick review of Belote v. Strange, another Michigan Court of Appeals case, I think Michigan does interpret HIPAA to protect oral interviews with doctors, if there is no executed HIPAA authorization. So I extrapolate from this that plaintiffs are required to sign a HIPAA form to pursue a medical malpractice case in Michigan.

Our lawyers never allow our clients to sign HIPAA authorizations for defense counsel use in personal injury or medical malpractice cases. Many of us, as attorneys, want to be considered cooperative lawyers and feel bad denying these requests. But the lesson learned here is that if you compromise your client’s rights under HIPAA you are leaving your client open to unforeseeable consequences.

Personally, I’m not a big privacy guy. I don’t have a big problem with the Patriot Act, for example. I also realize that accident and malpractice victims cannot use their medical history as a sword and a shield. You cannot pick and choose the medical records you want to put at issue in a case. But there is something awful – and creepy, actually - to me about allowing a defense lawyer in an adversarial system to sit down ex parte and talk to a patient’s doctor about the care, treatment and private conversations a doctor had with that patient. (Adding to the creepy factor: this is a wrongful death case.)

This raises the question as to what kind of doctor would be willing to talk to the lawyers ex parte. But that is a whole different issue.

You can find the entire opinion here.

Risk & Insurance had an interesting article about “scientific perspective” in predicting jury verdicts. The premise of the article is that the quality of jury consultants varies wildly because different jury consultants use different methodologies. In the litigation world, there are no barriers to entry for those who seek to be jury consultants. The only thing you really need to do is put the words “jury consultant” on your business cards. As a result, many jury consultants are “amateurs in terms of their training” to predict jury behavior.

The author believes - I think correctly - that accident and malpractice lawyers often make choices based on who the lawyer likes (and respects) as opposed to the jury consultants’ credentials and background in the science of predicting juror behavior.

As a result, the variable quality of jury consultants leads to mixed results on the efficacy of jury verdict research. Accordingly, settlement decision makers (plaintiffs’ lawyers, defense lawyers and adjusters) often question the reliability of research when coming up with a dollar figure for dispensing with a case, and end up instead making major decisions on gut instincts (see also: George W. Bush).

The author, Courtroom Sciences’ National Director of Litigation Consulting, George Speckart, contends that these gut decisions create losses that are more expensive than the costs of scientific jury research.

In summary, the article is saying that jury consultants are a lot more reliable than most lawyers think, and if you have had bad results, it might be you were using a jury consultant who was not using solid methodology.

Certainly, the author, as a jury consultant, has a horse in this race. And he casually throws out $50,000 as a number to get you where you need to be to make a prediction as to value, which I think is beyond what should be necessary. But the logic of the article is compelling, particularly for those who have had a previous bad experience with jury consultants. For these lawyers, the author makes a good case that mock juries are still worth considering if you are handling a serious accident, product liability or medical malpractice case.

Dr. Henry M. Learner, an instructor in Obstetrics and Gynecology at Harvard, writes an article in this month’s OBG Management called “Rebuff Those Malpractice Lawyers’ Traps and Tricks.” Dr. Learner is also the president of Shoulder Dystocia Litigation Consultants, a group that works with defense lawyers, medical malpractice insurance company case managers, and hospital risk managers in shoulder dystocia-related injuries and litigation.

I hate to give up one of my own but I’m pretty sure Dr. Learner is a double agent. Because the advice he gives in this article is either obvious (“know the specifics of your case”) or downright counterproductive. One piece of advice is to pull a Sarah Palin: “you don’t necessarily have to play by the rules for answering questions….” That cracks me up. But this one is even better:

Never allow an attorney to bully you in the courtroom or at a deposition. If the attorney begins to use such behavior, call it by its name and demand that it be stopped. Your lawyer will likely have raised the objection before you do; if she does not, protest such inappropriate behavior yourself. Never allow an attorney who is questioning you to raise his voice or speak to you sarcastically or rudely.

This is the absolute best path for a doctor to snatch defeat from the jaws of victory in a medical malpractice case. Jurors tend to trust doctors. The playing field is tilted in favor of the doctor. The very best way for a doctor to blow that lead is tell the plaintiff’s malpractice lawyer on the stand that he/she won’t be spoken to sarcastically. For anyone testifying - plaintiff, defendant, fact witness or expert - the very best advice is the very opposite of this advice: if there is no objection, just answer the question.

Here is the article.

In wrongful death cases, the size of jury verdicts has always tilted in favor of men, which is why many have argued that caps on non economic damages are sexually discriminatory. In a new study, Jury Verdict Research offers a very different conclusion when comparing compensation in wrongful death claims between minor females and minor males. The median wrongful death of minor females is $1,912,349 but the median award for the wrongful death of minor males is $1,500,000. This gap increases when looking at average wrongful death verdicts. Minor females average $8,648,036 in wrongful death cases compared to an average of $3,173,360 for males.

I can’t explain this data or begin to offer a reason for it.

In January, I wrote about Marcantonio v. Moen, an Anne Arundel County medical malpractice lawsuit that was dismissed on summary judgment by the trial court. The malpractice lawsuit alleges wrongful death as the result of an OB/GYN’s misinterpreting a sonogram and failing to order sufficient tests to follow up on the woman’s symptoms. Because of this failure to diagnose, the Plaintiff claims that his wife’s chances of survival went down from 80% to 50%-60%. The Maryland Court of Special Appeals found that there has to be a 51% likelihood that the person would have died but for the negligence. So in this case, she would have to have a 29% chance of living as a result of the negligence to recover an award. So while she was statistically likely to defeat the cancer even with the malpractice, she died.

The post focused on the dissent of Judge Timothy E. Meredith who contended that the requirement that the decedent’s chance of survival should not – as a matter of fundamental mathematics – revolve around the question of whether there was a 51% decrease in the likelihood the decedent would survive. Because if you had a 90% chance of living and defendant’s negligence takes you down to 60% and you die, there is a 75% chance you died as a result of the negligence.

The Maryland Court of Appeals reversed that decision last week in an opinion by Judge Greene. I grabbed the opinion and – cheater that I am – ran to the punch line of who won. So I concluded that the court made their decision based on the issue of what probabilities are required to bring a medical malpractice lawsuit for wrongful death. But the Plaintiffs were ordered a new trial for a different reason having to do with sham affidavits (relying on Pittman v. Atlantic Realty, a case I argued and won on summery judgment when I was a defense lawyer that was ultimately vacated by the Maryland Court of Appeals).

Okay, fine, I thought, the issue remains unresolved. But in a footnote to the very last sentence in the opinion, the court notes that the Maryland legislature has not amended Maryland’s wrongful death statute since the court decided Weimer v. Hetrick – the case relied upon by the Maryland Court of Special Appeals - and that the court is not included to overrule prior authority, particularly in the area of statutory construction.

I think a lot of Maryland medical malpractice lawyers were looking to this opinion to see if the new more liberal makeup of the Maryland Court of Appeals was going to lead to real changes in some of the more archaic rulings in Maryland medical malpractice and personal injury cases. And, sure, I know this footnote is dicta that is – by its own words – inconclusive on the issue and is not necessarily the view of every judge on the Maryland Court of Appeals. But the hopes of many malpractice lawyers in Maryland looking for a more moderate view on what level of harm must be caused to sustain a medical malpractice lawsuit in a cancer misdiagnosis case are set back by this unanimous opinion.

• Maryland Court of Special Appeals Opinion in Marcantonio v. Moen
• What is Required to Bring a Medical Malpractice Case in Maryland?
• New Kentucky Supreme Court Opinion on Diminished Loss of Chance

I rarely offer my views on subjects outside of personal injury issues on the Maryland Injury Lawyer Blog because I don't think anyone really cares. No, really. I'm pretty sure about this. But today is a pretty special day so I'll make an exception, regardless of whether anyone's listening.

I was more thrilled by Obama's win than anything that did not directly involve me, my family or friends since the Washington Bullets won the NBA Championship in 1978 (somewhere I have the championship ring I swore I would never take off). I found it so odd to have such a personal moment share by literally billions of people. But I'm struck by Michael Gerson editorial in the Washington Post today that Obama's victory "is likely to unleash an ideological and vengeful Democratic Congress."

I hope Gerson is wrong. But I fear he is not. We won. The challenge for us now is to not be jerks about it and join hands with Republicans to try to make a better country.

The Maryland Lawyer Blog wrote a short post on December 3, 2007, about Governor O’Malley’s elevation of Anne Arundel County District Court Judge J. Michael Wachs to the Circuit Court bench.

Judge Wachs was overwhelmingly approved by voters yesterday, receiving approval from 99 percent of those who voted. But the Maryland Lawyer Blog got over a thousand hits with what was obviously voters looking for information before making a decision. I was amazed at how many Anne Arundel County residents seemed particularly interested in whether Judge Wachs was a Republican or a Democrat. I think you will find interesting reading the 20 comments to this blog post.

Thankfully, Judge Wachs was able to be above politics and not have to go out and ask for votes. But in15 years, if he wants another appointment, he most likely will not run unopposed. In judicial elections, a deal killer for sitting judges is often being alphabetically challenged. If you don’t believe me, ask Judge Alexander Wright, Jr. (although it all worked out well for him in the end when Governor O’Malley nominated him to the Maryland Court of Special Appeals).

If we can put slot machines on the ballot, why can’t we put a referendum on changing the process that has us electing judges in Maryland? I know some people will say they would rather have a judge who had to win an election than a judge who was nominated because his father was the nephew of the governor's wife. But, look (note to reader: if you are reading to yourself, please read the word “look” in your President Obama voice – thank you), O’Malley has made good choices as governor. Obviously, if we pick a bad governor who makes selections for purely personal or political reasons, we have a problem. While I’m not a big fan of Bob Ehrlich, I think he is an honest, decent guy who tried to pick qualified judges.

There is no perfect process because we are human beings. But the Governor appointment (maybe with Maryland Senate confirmation) seems like the best choice we have. It is time to change the Maryland Constitution and eliminate the process of subjecting judges to the election process.

Wyeth v. Levine is big, obviously. I did not realize quite how big until I saw this Washington Post editorial on Election Eve of all times, arguing that the issues in Wyeth v. Levine should be decided by Congress, not the Supreme Court.

This case is not just big in the products liability lawyer world. I don't want to say the nation is watching because that would be an overstatement. But certainly this is one of the biggest products liability cases to come along in years.

The Supreme Court Oral Arguments in Wyeth v. Levine are available here. I read about 40 pages of it - more than half - and I hope to finish it tonight.

Is there anyone who even pretends to know how the Supreme Court is going to rule in this case? Potential upside to a broad pro-defendant ruling: Congress and President Obama are mobilized to pass a strong bill that overrules Wyeth v. Levine and Medtronic v. Riegel.

Chantix sales in this country have fallen 49% percent, Pfizer reported last week. However, internationally, sales jumped 60 percent. This report comes as the FDA said it may need to upgrade warnings on Chantix after increasing reports of road-traffic accidents and seizures involving people on Chantix. Chantix already has been linked to serious psychiatric side effects such as depression and suicidal ideations and behavior. Last year, the Chantix label warning was strengthened for suicide, although Pfizer claims that the symptoms are not from Chantix but from nicotine withdrawal itself.

In making the Fort Pinto, engineers discovered before the Pinto was placed into the market that rear-end collisions would rupture the Pinto's fuel system extremely easily. Although Ford owned a patent on a much safer tank, Ford made the cost-benefit analysis that compared the cost of an $11 repair against the cost of paying off potential lawsuits.

Ford put all of this in writing, leading to a spate of punitive damage awards. Naturally, no one puts this kind of stuff in writing anymore. That was the lesson of the Ford Pinto litigation.

But plaintiffs’ lawyers argue that the same unwritten calculus keeps drugs like Chantix, Seroquel, and Avandia on the market. The manufacturers of the drugs know the likelihood is that lawyers are going to continue to file lawsuits and these cases are going to eventually settle. The question is whether the costs of defending these cases and paying settlements and verdicts (not to mention the bad will that comes with every lawsuit) is worth the profits received from the drug.

Having said that, let me back step just a bit. I’m not suggesting that Chantix is the same thing as the Ford Pinto because not everyone at Pfizer believes that Chantix is a bad drug. I’ve defended a number of big pharmaceutical companies. I’m not suggesting everyone involved in the manufacturing of Chantix (or Serqouel and Avandia, two other heavily litigated drugs that are under siege and still on the market) are engaging in this raw, void of humanity, cost-benefit decision making process.

I know that within Pfizer there are decent people who believe in good faith that Chantix is a good drug because it is helping people quit smoking. (GlaxoSmithKline actually says Chantix is not efficacious, which is ironic because I’m grouping Glaxo’s Avandia in with Chantix). But if you think plaintiffs’ lawyers are biased, talk to the people who have staked out careers and reputations on the safety and success of a drug.

Supreme Court Justice Clarence Thomas told a group of lawyers in Atlanta last week that judges should spend more time listening and less time talking. "I believe quite strongly we, as judges, need to take the approach we're here to solve difficult problems, not debate with lawyers," Justice Thomas told the lawyers. Justice Thomas is the least likely to speak up during oral arguments of any Supreme Court justice.

I appreciate the sentiment. The "failure to really listen" disease is one from which we all suffer, to varying degrees. But if listening to lawyers is important in oral arguments as Judge Thomas indicates by this comment, than how can asking questions of lawyers not be an important part of the process? No lawyer is about to include in their brief and/or oral argument the answer in advance of every good question the case generates. This give-and-take with lawyers and judges is incredibly useful.

A few years ago, Justice Thomas compared the job of a judge to that of a surgeon.

Suppose you're undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn't go in there to have a debate about gallbladder surgery. You actually went in to have a procedure done. We are judges. This is the last court in a long line in our system. We are there to decide cases, not to engage in seminar discussions.