Maryland Injury and Disability Law

If a 5 Year Old Drowns And No One Saw It Did He Suffer?

pstrand@gblawyers.com (Greenberg & Bederman) — Fri, 10 Jul 2009 08:47:55 -0500

“If a tree falls in a forest and no one is there to hear it, what sound does it make?”

That’s an old Zen Buddhist koan (or fable) that is meant to be used as an intellectual exercise. The idea is to ask an unanswerable question, which is supposed to send your mind into a transcendental state.

A version of this koan also appears to be a defense strategy for a law firm in Maryland. It goes like this:

“If a five year old boy drowns in a pool and nobody saw it, did he suffer?”

Whether that strategy sends the minds of a jury into a transcendental state remains to be seen, but we are of the opinion that drowning is a horrible and painful way for someone to lose his life, regardless of whether there are witnesses to that suffering or not.

On June 22^nd, 2006, a five year old boy named Connor Freed went swimming with two friends and an adult at the Crofton Country Club. The adult who was in charge of watching him removed Connor’s life jacket so the child could use the bathroom. The adult continued to watch the other two boys. Unbeknownst to the adult, Connor came out of the bathroom and ended up in the crowded pool without his life jacket, where he drowned.

As bad as that sounds, the trial was even worse. Connor’s parents, Thomas Freed and Debra Neagle Webber, were awarded $2,000,000 apiece for their loss, but Maryland’s cap on non-economic damages automatically lowered the award to $1,000,000. Since it is doubtful that a five year old boy is much of a money earner, $1,000,000 is all that the death of a child is worth in Maryland. That verdict was secured without much of a struggle. The child was found floating face down, with no hue and cry raised by the lifeguards or anyone else. It is clear that the lifeguards were not doing the important job that they were hired to do.

But even with that insulting, arbitrary limit on the worth of the child, what is now at issue in this case is that the company in charge of pool maintenance and providing the lifeguards is claiming that since nobody actually witnessed the child drown, there is no evidence that he suffered. This is important, because the estate of Connor Freed is attempting to secure compensation for pain and suffering, not for the pain and suffering that the parents went through (which we imagine is considerable,) but for the pain and suffering that Connor Freed went through when he drowned. After an initial ruling by an Anne Arundel County circuit judge agreed with that defense and ruled that there was no reason to put the question of Connor’s suffering in front of a jury. Connor Freed’s parents appealed that ruling and won, and now the matter of this five year old boy’s painful death will finally be heard.

It seems absurd to say that suffering does not exist if nobody is there to see it. And the idea that drowning is an easy and peaceful way to die seems equally absurd. An article from Illinois Parks and Recreation which includes an interview with a drowning survivor puts that myth to bed directly:

"...When the cramp hit me, I sank to the bottom of the lake 12 feet down, in a doubled-up position. Compounding the wracking pain in my trunk was a mounting choking sensation. (Try holding your mouth and nose after taking a deep breath. Hold your breath until it becomes unbearable; then try holding it a few seconds past the unbearable point. It's a horrible sensation and would give you a dim idea of just one aspect of how it feels to drown.) The pressure of the water caused a stabbing pain in my eyes and ears... try to keep your head when water begins to seep into your already tortured lungs and your body is a mass of pain and you know you are dying... I remember that I screamed down there against a solid wall of water. I remember that I threshed and bobbed, but only succeeded in burrowing my head into the slime of the lake floor...."

That does not sound like a painless way to die.

According to the Center for Disease Control, there is an average of ten drowning deaths per day in the United States. Among children ages 1 to 14, drowning is the second leading cause of unintentional injury-related death. It is not a freak occurrence, and it certainly is not something that happens without suffering.

We can only hope that the jury that is seated to hear this case will see things the same way.

If you or a loved one has been injured due to a case of negligence in Maryland, Virginia or Washington, D.C., contact Greenberg and Bederman for a free legal consultation today.

To learn more about personal injury issues, read our personal injury page. To learn more about our personal injury lawyers, read about Roger Greenberg, Andrew Bederman, or Jason Fernandez, or watch our personal injury videos on UTUBE.

Collateral Source Rule - Unfair Tort Law?

pstrand@gblawyers.com (Greenberg & Bederman) — Wed, 08 Jul 2009 16:10:33 -0500

Tort reform organizations often paint a very erroneous picture when it comes to injury settlements. They make it seem that every stubbed toe is worth a million dollars, or that getting insulted or getting your feelings hurt is practically a guarantee of an enormous financial settlement.

As personal injury attorneys who practice in the Washington, D.C. area, we can tell you with great certainty that that is not the case. While we do our best to secure the most compensation for injuries that we can for our clients, getting to that point is not the walk in the park that the tort reformers describe.

There is an important aspect to injury verdicts or settlements which many people are unaware, and this is that quite often, an injury settlement has strings attached. It is not simply a big bag of money or an enormous cardboard check that is handed over to the victim as soon as he or she walks out of the courtroom. For one thing, your insurance company might need to be paid.

As an example, let’s say for the sake of argument that you are walking across Wisconsin Avenue and you get hit by a car that ran a red light. The ambulance takes you to the hospital and you get treated. If you are like most injury victims, the last thing on your mind is sorting out which insurance company is going to pay for what. You simply hand over your insurance card and let them get on with it.

Once you recover and decide to pursue legal action against the person who hit you, that’s when things get tricky. If you end up winning a settlement or a judgment against the driver, your health insurance company will often place a lien on your personal injury settlement or judgment in order to recoup their costs for your medical treatment. The idea is that your insurance company rightly believes that since another party was at fault, they paid for medical services that they were under no legal obligation to pay for.

The legal term for this process is called subrogation, and it is a fairly common occurrence in injury cases. What is fortunate about the process is that insurance companies are only allowed to be reimbursed for what they paid for in medical expenses, and not all of what you received for medical expenses in your settlement or judgment. So if your insurance company paid $9,000 in medical expenses and you received $20,000 for medical expenses in your settlement, the insurance company is only allowed to file a lien for the $9,000 that they actually paid.

The question that many of you might be asking is “Why would I get a settlement for $20,000 in medical expenses if it only cost the insurance company $9000?” The answer to that question is that under Maryland law, there is an evidentiary rule that prohibits the admission of evidence that a victim will be compensated from a third party in a tort case. This prevents the person who was responsible for the injury from saying “What’s the big deal? He got his bills paid for. No harm, no foul, right?”

This part of Maryland law is known as the “Collateral Source Rule,” and it is a very important element of what the attorneys at Greenberg and Bederman are trying to do for our clients. When we represent an injury victim, our intention isn’t to simply get the bills paid and nothing more. The vast majority of our clients have been injured due to the negligence of someone else. They were hit by a driver that wasn’t paying attention, or their doctor made an easily preventable negligent error.

The Collateral Source Rule has been in place for as long as we can remember, and it is, of course, one of the main targets of tort reform organizations everywhere. They argue that it is unfair for a defendant to have to pay more for medical expenses that what the victim’s insurance companies paid, to which we say hogwash. For one thing, insurance companies carry negotiating weight that individuals do not. An insurance company that brings thousands of patients to hospitals and clinics can very easily ask for a lower price, while individuals carry no weight whatsoever. Nor do insurance companies negotiate lower prices on behalf of their patients. They do so on behalf of themselves. And again, a tort case is not simply a tit for tat accounting of dollars and cents. It is a legal way of both rectifying financial damages and bringing the responsible parties to account for their actions. It is important to remember that the driver hit you, not Blue Cross Blue Shield. And the Collateral Source Rule is the courts way of recognizing that.

If you or a loved one has been injured in an accident, contact Greenberg and Bederman for a free legal consultation today.

The Healthcare Crisis A True Story

pstrand@gblawyers.com (Greenberg & Bederman) — Wed, 01 Jul 2009 13:41:44 -0500

This is a true story that Greenberg & Bederman is sharing that happened to a colleague of ours to illustrate yet another reason our country is in a healthcare crisis.

Back in 2003, I got sick.

I know that isn’t the most earth-shattering of statements. Everybody gets sick, after all. But I got VERY sick.

At the time, I had just gotten out of college and was struggling to find a job. In order to pay the bills I began substitute teaching, which meant that every day I was sent into a different classroom full children, with the age ranging anywhere from 5 to 17. On occasion I would end up in a high school, but for the most part my duties would involve looking after grade school students.

Young children, as many of you who are parents may know, are quite susceptible to illness and infections. And considering that I was a bachelor in his twenties, I can tell you with great certainty that my immune system wasn’t exactly operating at its peak performance. So within three weeks of starting my substitute teaching duties, I got a sore throat.

The difference was that it didn’t go away. It got worse and worse, so much so to the point that after three days I was unable to swallow anything, or even talk. I brought myself into the emergency room and wrote down my symptoms to the admitting room nurse. After waiting for about an hour, they brought me in and gave me x-rays and further pokes and prods. Then another doctor came in and shoved a fiber optic camera up my nose and down the back of my throat, and then I was informed that I had a badly infected epiglottis.

For those of you who don’t remember your high school biology, the epiglottis is a piece of cartilage that forms part of the voice box. It remains inert while you are breathing and talking, but when you swallow food or water it expands to cover the trachea. This is what keeps food from going down your windpipe.

Mine was swollen in place, and the doctor told me that it was the medical equivalent of a garage door being rusted shut. They put me to bed, gave me extremely powerful intravenous antibiotics, and fed me jell-o, broth and tea, and I stayed there for three days.

What is important to note here is that at the time I did not have health insurance. It wasn’t a matter of irresponsibility on my part. I wanted health insurance, but I simply couldn’t afford it. Not on a substitute teachers pay.

The initial bill for my treatment was $10,000. The hospital allowed me to plead “financial hardship,” and lowered the bill to $7,000. The bills took me about two years to pay off.

What makes this story interesting is not necessarily my past illness, but rather what happened about a week ago. I was down in Richmond, Virginia visiting some friends, and I ran into a person I went to college with. We reminisced about old times for awhile, and then he mentioned that he had just gotten out of the hospital. When I asked him why he was in the hospital, he asked me if I knew what the epiglottis does.

It turns out that my friend had the exact same illness, received the exact same tests and treatment, stayed in the hospital for the exact same length of time, and was even fed the same jell-o, broth and tea diet. I knew that my friend had a good job that provided him with health insurance, so I asked him what his out of pocket costs would be, and he told me that it was going to cost him $7,000.

I asked him if he had bad insurance, and he told me that he had chosen the most expensive coverage that was available under his company health plan. The problem was that the insurance company didn’t agree with many of the tests and were refusing to pay for them. They also claimed that my friend was kept in the hospital a day longer than necessary and they were refusing to pay for that as well. His employers were filing appeals and were doing everything that they could, but my friend was not optimistic. He was weighing his two options, which were depleting his savings to pay the bills or getting a second job on the weekends.

To recap, my friend and I had the exact same illness and got the exact same treatment. I did not have insurance, and he did, yet the illness cost us the exact same amount of money.

It was an interesting time to have that particular conversation with my friend, considering that at the time of this writing, President Obama is attempting to move forward with health care reform. Opponents of his attempts are painting a very dire picture, claiming that any reform will end up ruining American health care by forming a huge, inefficient government run bureaucracy.

One of the many vitriolic right-wing radio hosts described efforts at reform as “…government telling us what doctors we can see, which treatment we can have, and what pills we can have.” That seems like nothing more than a description of the status quo.

Have you ever tried to see a doctor that was out of your network? If your treatment isn’t refused outright by the doctor, your insurance company will probably refuse to pay for it. Right now it isn’t the “government telling us what doctors we can see.” It’s the insurance companies.

Considering how my friend was treated by his insurance company, the idea of “government telling us what treatment we can have” doesn’t seem like much of an issue. Anyone reading this can have any treatment that they want, but the prospect of their insurance companies actually paying for that treatment is probably fifty/fifty at best. Actually, seventy/thirty is probably more accurate, considering that my friend had to pay $7,000 out of a $10,000 bill.

And as far as “government telling us what pills we can have,” I actually went into get a prescription filled about a year ago, and I expected the price to be about $10. It turns out that it was $210. When I asked my insurance company why, the answer was because the prescription that I needed wasn’t on the pre-approved list. I asked to see the pre-approved list, and basically that list contained medications that were all old enough to be sold in generic form. So under my insurance company plan, they will pay for any pill, so long as it isn’t the newest and best medications. In order to have that sort of coverage, it would have cost me an extra $75 a month.

Everyone is still taking a look at how this health care reform is going to play out. President Obama seems to be taking the tactic of “let them legislate,” which means that he is perfectly fine with Congress and the Senate batting around ideas until a suitable compromise is reached. While that is all well and good, you have to wonder what good health care reform would be if there was no insurance reform to go with it. Because right now, insurance isn’t “coverage” as much as it is a “coupon.” In the case of my friend, he thought he had insurance, but what he had was 30% off.

We currently live in a country where anyone who gets sick can go broke, regardless of whether they have insurance or not, and that seems much more frightening than getting government involved in health care.

DC Metro Lawsuits Filed Too Soon?

pstrand@gblawyers.com (Greenberg & Bederman) — Fri, 26 Jun 2009 14:10:22 -0500

The immediate aftermath of an accident might not seem to be the best time to be patient. After all, the hospitals certainly aren’t patient when sending out their medical bills, nor does the bank holding your mortgage note seem very patient about not getting its monthly payment because you couldn’t work.

But it is important to understand that hardly any accidents are simple affairs. Even a car accident can take a long time to unravel. One driver will swear that the accident occurred a certain way while the other will swear something different happened, and in the meantime there are multiple witnesses who are all contradicting each other.

There are also other things to consider. What condition were the roads in? Was it raining? Did the accident happen at night? Was it a driver error or a mechanical error?

These are all aspects of an accident that should be determined with great certainty before moving forward with an injury case. While it might seem to be a good idea to move forward in the immediate aftermath of a highly publicized accident, filing a lawsuit before all the facts are in could prove very detrimental to your case.

For instance, if you are at a stoplight and a car slams into you from behind and injures you, your initial thought would be to sue the other driver. But if you file the lawsuit immediately and it turns out that the reason the car slammed into you was because a mechanic did a poor job on servicing the brakes, the opposing counsel could successfully have the case thrown out before it even gets to the jury stage.

We are bringing this up because there have been some local attorneys who have already filed lawsuits against the Washington Metropolitan Area Transit Authority on behalf of a few of the injury victims who were on the train. While we have no doubt that their hearts are in the right place, we think it is unwise to initiate lawsuits before all the facts of the case have been fully uncovered.

According to the initial results of the National Traffic Safety Board, it seems increasingly likely that one of the main causes of the accident was a system failure rather than negligent behavior on the part of one of the drivers. We also know that the engineer of the second car that slammed into the first was not travelling at an excessive rate of speed, and in fact she vigorously applied the brakes in an attempt to avoid the accident. This doesn’t seem like negligent behavior on her part.

With that in mind, we have to wonder what will become of the lawsuits that have already been filed in which negligence on the part of the driver is mentioned as the primary cause of the accident.

At Greenberg and Bederman, we are already representing some of the victims of the Red Line Metro Crash, and while we have no doubt that the other attorneys are fully committed to getting the best possible results for their clients, we are advising patience for ours. We believe that we will be able to serve our clients more effectively once the NTSB has completed its investigation, after which we will move forward vigorously.

If you or a loved one was involved in the Metro crash at Fort Totten on June 22^nd, contact Greenberg and Bederman for a free legal consultation today.

What if Metro Accident Were In Maryland?

pstrand@gblawyers.com (Greenberg & Bederman) — Fri, 26 Jun 2009 08:36:32 -0500

The entire D.C. region is still coming to grips with the horrible accident that occurred on Metro’s Red Line on Monday. With the death toll at nine, and with 80 people injured, it’s the worst accident that DC transit has ever seen.

There seems to be a lot of stories involving fate with this crash. We have heard stories of people who managed to get through the crash unscathed while passengers who were sitting one car forward suffered horrible injuries. We have heard stories of people who were initially angry that they missed the train, only to be profoundly relieved once they found out that missing that train might have saved their lives. An event like this brings home the random uncertainty of daily existence, which, as accident attorneys, we are reminded of on a daily basis.

One random element of the crash was its location. The two cars collided just outside of the Fort Totten Metro stop, which is approximately 3,000 feet within the borders of Washington, D.C. Had the train been on the green line heading east, or if the crash had happened two stops away in Silver Spring or three stops away in Forest Glen, the accident would have occurred within the state of Maryland.

On the surface, that might not seem to be that big of a deal, but if you consider the differences between the laws of D.C. and Maryland, the site of the metro crash makes all the difference in the world.

The best way that we can put it is that under Maryland law, the victims of the crash are only really recognized as numbers, while in D.C. they are recognized as people.

If the metro train accident had occurred in Maryland, then the life of Major General David Wherley, former Commander of the D.C. National Guard and the man who scrambled jets over D.C. on September 11, 2001, would only be worth $200,000. The same price would be applied to his wife, Ann, who also died in the crash.

The life of Jeanice McMillan, the woman who was driving the train and the woman who died frantically trying to apply the brakes, would only be worth $200,000 in Maryland. This despite the fact that when the train hit she was desperately trying to slow the train down, and in doing so probably kept the crash from being even worse.

Ana Fernandez, mother of six children ranging in age from 21 to 1, is only worth $200,000 in Maryland.

LaVonda King, who was 23 years old, just started a beauty parlor up in Forestville, and had two children of her own, ages 2 and 3, isn’t worth anything but $200,000 in Maryland.

Veronica DuBose, who was 29 and also had two young children, was on her way to take more nursing classes so she could get better paying positions. Again, that’s only worth $200,000 in Maryland.

We could go on, but you get the idea.

The reason that there is an arbitrary financial limit on the lives of these people is due to the Maryland Tort Claims Act, which states that when people get injured or die and the responsibility can be laid on the state government, then the most that the victims can recover for non-economic damages is $200,000. And since Metro falls under the state government within the borders of Maryland, these are the rules that the victims’ families would have to work under if they attempted to receive compensation for their losses.

Had the accident happened just 3000 feet in a different direction, the husband and children of Ana Fernandez would have received just $200,000 and not a penny more, despite the fact that Mr. Fernandez lost his wife and that her six children don’t have a mother. Same with the families of Veronica DuBose, General Wherley, and all the other victims of the crash.

The District of Columbia, on the other hand, has no arbitrary limit on the amount of non-economic damages that injury victims can receive. The D.C. government realizes that Ana Fernandez has six children and a husband who are suffering through unimaginable pain. They realize that LaVonda King’s two children will never speak to their mother again. They realize that every single one of those victims have families and loved ones who no longer have them in their lives due to someone not doing their job properly.

All of those victims were people. They are not numbers on a ledger. They are not something to be protected against. And the difference between that realization and its opposite was, in this case, a mere 3,000 feet. It was another example of fate at work, but at least here it came down on the side of the victims instead of on the side of the organization that contributed to the accident.

Greenberg & Bederman is a personal injury law firm, located one half block from the Silver Spring Metro station, one mile from the Washington, DC line.

Andrew Bederman Quoted in Washington Times

pstrand@gblawyers.com (Greenberg & Bederman) — Wed, 24 Jun 2009 08:54:10 -0500

June 24, 2009

Metro braces for crash lawsuits

By Michael Drost and S.A. Miller

Metro officials are bracing for tens of millions of dollars in lawsuits likely to be filed against the cash-strapped transit system by those injured in Monday's crash and the families of the deceased.

Nobody yet knows who - if anyone - is at fault in the train wreck. But injury lawyers and Metro officials say the lawsuits against the agency are a sure thing.

"It is an accepted reality," said Metro Board Chairman Jim Graham. "As a lawyer, I understand how these things work. It is something we are going to see in the future."

The litigation likely will come not only from the more than 70 injured and the families of the nine dead in the train pileup, but also from many of the other passengers on the subway cars who were frightened or otherwise traumatized.

"It will quite easily be tens of millions of dollars," said Michael I. Krauss, a law professor specializing in torts at George Mason University School of Law.

That's a financial hit Metro can ill afford. The Washington Metropolitan Area Transit Authority (WMATA) has been struggling with a revenue shortfall projected earlier this year at $154 million. Officials had proposed slashing 900 jobs and reducing services to balance the $1.3 billion operating budget.

Metro officials were unable to immediately determine how much of any potential liability would be covered by insurance.

Mr. Graham said the transit system's finances or the potential legal bills are not of concern right now. He said they are focused on ensuring the "safety and security" of the Metro system.

He also said the threat of lawsuits also was not related to the agency's decision to set up a $250,000 relief fund for victims who need immediate assistance.

Still, Metro angled to pre-empt some lawsuits Tuesday by asking crash victims to make claims directly to WMATA's risk-management department, which will assess and manage the claims as an alternative to litigation, Metro officials said.

Andrew Bederman, a prominent local plaintiff's lawyer with offices in Silver Spring, said he anticipates many of his colleagues are out trying to round up clients among the crash victims.

"My suspicion is that given the severity of the disaster and the sheer number of the people who were injured ... that you are going to see a lot of this occurring," he said. "Knowing D.C. as I do, I know it is going to happen or is happening already."

He said he had already taken on two clients with less-severe injuries from the crash.

It is illegal in the District for lawyers to solicit clients by such means as tracking down accident victims or trolling emergency rooms. However, Mr. Bederman said lawyers can pay to have their firms prominently displayed on Google when keywords like "train" or "crash" are searched.

The agency has paid out big awards in the past when people were injured or killed by trains and buses.

Last year, Metro agreed to pay a $2.9 million to the family of Sally D. McGhee, 54, and $2.3 million to the family of Martha Schoenborn, 59, to settle lawsuits filed after the two women were run over and killed by a Metrobus.

The women, who worked together at the Federal Trade Commission, had just left work and had a "walk" signal as they crossed Pennsylvania Avenue but the Metrobus came around the corner and struck them.

The Washington Times, LLC

Reprinted from The Washington Times, in the "news/local -- Local" section.

DC Metro Train Accident

pstrand@gblawyers.com (Greenberg & Bederman) — Wed, 24 Jun 2009 08:37:46 -0500

“The Metro train car that slammed into another on the Red Line yesterday evening was two months past due for scheduled maintenance on its brakes, and the car was an older model that federal officials had recommended be replaced because of concerns about its safety in a crash, officials said today.” – Washington Post, 6/23/09

There isn’t a lot to say about this just yet. The National Transportation Safety Board is still examining the wreckage of the two trains at the time of this writing, so we don’t know whether or not the two months lateness on the brakes of the car was a factor or not.

In fact, the reports are varying. In this morning’s Washington Post, staff writer Lyndsey Layton wrote the following:

“Experts familiar with Metro's operations focused last night on a failure of the signal system and operator error as likely causes of yesterday's fatal Red Line crash….Metro was designed with a fail-safe computerized signal system that is supposed to prevent trains from colliding. The agency's trains are run by onboard computers that control speed and braking. Another electronic system detects the position of trains to maintain a safe distance between them. If they get too close, the computers automatically apply the brakes, stopping the trains.”

It seems obvious now that the “fail-safe” system was anything but. And we still don’t know what role driver error had in the crash. The operator of the train that hit the stopped car was killed, but the driver who stopped is scheduled to be interviewed at the time of this writing, so there might be some answers there.

But in the meantime, what everyone in the D.C. area has to contend with is the fact that nine people are dead, among them a former Commanding General of the D.C. National Guard. There is also the fact that seventy-six people were injured, in ways ranging from minor to critical.

The best that we can hope for right now is that the people who were injured are able to make full recoveries as soon as possible. And we also hope that whatever recommendations that the NTSB comes up with after their investigation are fully implemented.

Insurance Company and Your Injury

pstrand@gblawyers.com (Greenberg & Bederman) — Tue, 23 Jun 2009 12:33:41 -0500

In the twenty five years since we began our practice, one constant that we hear quite often from many of our injury victim clients are worries about “Pre-existing conditions.”

The style and syntax of the worries vary from person to person, but if we were to average them out into one sentence it would be this:

“The insurance company says that they won’t pay for the needed treatment because they say that the reason the injury was so bad was because of a pre-existing condition.”

If that seems a little hard to follow, here is a more concrete example.

Mr. X is driving down 395 at fifty miles an hour. A car in the lane to his right suddenly swerves into his lane without signaling. Mr. X’s car is sideswiped and is sent careening into the highway divider. Mr. X suffers a dislocated shoulder when his body slams up against the seatbelt.

Mr. X already has a particularly weak shoulder due to the fact that he used to be on the wrestling team in high school and suffered from a torn rotator cuff. Because of this previous damage, it will take surgery and physical therapy in order to get Mr. X’s shoulder back to normal.

The insurance company of the driver that hit Mr. X tells him that they will only pay for a pre-determined amount, which is usually an “average” of what they think a similar injury would cost. As far as they are concerned, the costs of the extra surgery and the physical therapy are not their problem, because these conditions were “pre-existing,” or, Mr. X had these problems before the accident occurred.

This is what insurance companies all over the nation tell Mr. X, or you, or your cousin, or thousands of other people who get hurt a little worse than insurance companies find financially convenient.

But while they might tell you this, they absolutely will not tell your lawyers the same thing. This is because they know that any first year law student could point out that they are going directly against one of the oldest tort precedents in the book.

Way back in 1889, a kid named Jonathan Vosburg was sitting at his desk in his classroom in Waukesha, Wisconsin. A boy named Hiriam Putney was sitting across the aisle from him. As a joke, Putney lightly kicked Vosburg in shin, just below the knee. It wasn’t a serious kick. It was just a light tap. According to testimony, Vosburg claimed that he didn’t even feel it happen initially.

But three days later, Jonathan Vosburg was delirious, vomiting and in severe pain. After six days, he had to have an operation, where it was determined that he would never have the use of his leg again. It turns out that Vosburg had already suffered a leg injury during a sledding accident earlier that year, and when Putney kicked him in the leg, it made the injury even worse.

Vosburg sued Putney for assault and battery, and the case went all the way to the Wisconsin Supreme Court before Vosburg was awarded $2,500. What is important to note here is that Putney’s attorneys essentially argued that it was ludicrous for their client to be held responsible for all of the damages when he barely touched him. It was, after all, just a little kick. And how was he supposed to know that Vosburg’s leg was already injured?

To which the Wisconsin Supreme Court replied, “What were you doing kicking him in the leg in the first place?” If Putney had mastered his impulse to kick Vosburg, the injury might have gone on and healed perfectly. Or maybe Vosburg would have injured it in some other way, and Putney could have lived out the rest of his life without being a legal footnote. But Putney did kick Vosburg, and Vosburg lost the use of his leg.

The ruling on Vosburg v. Putney became what is now known as the “Eggshell Skull Rule,” which means that just because the victim is more susceptible to injury does not mean that the person responsible for the injury is any less responsible. So this means that it doesn’t matter if your pre-existing condition is that you were made of glass. If you get into an accident and the insurance company involved says that a “pre-existing condition” frees them from any obligations to you, they are not doing the right thing.

You might be wondering why an insurance company would tell you this, and the reason is that insurance companies routinely tell you things that aren’t true. It’s not that theyhaven’t heard of the “Eggshell Doctrine.” They most assuredly have. It’s just that they are pretty sure that you haven’t heard of it. And considering that most of you have never been a first year law student, the odds are in their favor.

This behavior has a tendency to change when you bring in your own legal counsel. To that end, it is important to get in touch with an attorney any time you get into an accident which results in you being injured. In many cases, the law is on your side, even if the insurance company is not.

If you or a loved one has been injured in an accident, contact the law offices of Greenberg and Bederman for a free legal consultation today. To learn more about personal injury issues, read personal injury, or watch our personal injury video.

Obama Speech in Chicago to AMA

pstrand@gblawyers.com (Greenberg & Bederman) — Thu, 18 Jun 2009 10:12:03 -0500

On June 15^th, President Obama gave a speech to the American Medical Association in Chicago. Considering that a big part of the President’s agenda involves health care, it can be assumed that he attached a great deal of importance to this speech. Any kind of health care reform would be very difficult to pull off without the support of the biggest and most influential medical advocacy group in the country.

Right off the bat, Mr. Obama offered a real example as to the realities of our health care system when he described the working day of a doctor in New Hampshire:

“Our costly health care system is unsustainable for doctors like Michael Kahn in New Hampshire, who, as he puts it, spends 20 percent of each day supervising a staff explaining insurance problems to patients, completing authorization forms, and writing appeal letters; a routine that he calls disruptive and distracting, giving him less time to do what he became a doctor to do and actually care for his patients.”

He also gave an example as to how things were going among those of us who have to pay for the premiums:

“Small business owners like Chris and Becky Link in Nashville are also struggling. They've always wanted to do right by the workers at their family-run marketing firm, but have recently had to do the unthinkable and lay off a number of employees - layoffs that could have been deferred, they say, if health care costs weren't so high. Across the country, over one third of small businesses have reduced benefits in recent years and one third have dropped their workers' coverage altogether since the early 90's.”

It doesn’t take much to find the flaw in the system for both the doctors and the small business owners. The doctors’ waste precious hours during their working days either trying to get paid by the insurance companies or explaining to their patients why the insurance company won’t pay for services, and the small business owners have to either cut benefits or lay people off because the premiums are so high.

And according to President Obama, it isn’t just the small businesses that are struggling with premium costs:

“A big part of what led General Motors and Chrysler into trouble in recent decades was the huge costs they racked up providing health care for their workers; costs that made them less profitable and less competitive with automakers around the world.”

For all the people who are against government involvement in health care, the constant refrain seems to be “I think health care decisions should be between you and your doctor, and no one else.” The implication there is that if the government gets involved there would be some faceless bureaucracy telling you what treatment you can have, which doctor you can see, and which prescriptions you can have. It is very difficult for us to see how that differs from anyone with your average insurance plan.

If you think the government is a faceless bureaucracy, try getting in touch with your insurance company for anything other than paying your premiums. If you think that you can see whichever doctor you choose, see what happens when you try to go see a doctor who isn’t part of your insurance plan. If you think that you can have whichever pills you want, see what happens when the pills you need aren’t on the approved list of your insurance company.

It seems that many of the folks on the anti-reform side believe that there is something profoundly unpatriotic about the idea of getting sick without going broke. But we believe that there can be no health care reform without insurance reform. Insurance is the only business in America (and possibly the world) where you pay an arm and a leg for services that might be rendered, but only if those services aren’t too costly and inconvenient for the people providing them. Plumbers don’t work like that. Carpenters don’t work like that. In fact, if anyone else worked like that they wouldn’t be in business at all.

If you were a fly on the wall over at one of the more expensive offices on K Street, you would see insurance company lobbyists using every number in their considerable rolodexes, and you would hear these lobbyists urging members of Congress to either kill health care reform completely or to fill it with compromises that either render the reform meaningless or make life easier on the insurance companies. Chief among these compromises is “caps,” which is a set limit on the amount of compensation that victims of medical malpractice can receive. They are probably contending that if only there were a limit on compensation, then health care costs would immediately drop like a stone. This is fiction.

According to the Congressional Budget Office (via the New York Times:)

“The office estimates that caps on damages would ultimately reduce malpractice premiums for medical providers but would have a “relatively small” impact on total health spending, reducing it by less than half a percent.”

As usual, the main concern of the insurance company is profits. And if they can maximize those profits by connecting two completely unrelated things (malpractice premiums and healthcare costs,) why wouldn’t they? These caps have maximized insurance profits in Texas, Nevada, and countless other states. But we can’t help but notice that people in these states are still paying just as much as they used to.

To learn more about malpractice issues, please read our malpractice page, or read about our malpractice lawyer, John Sellinger, or view his malpractice video on Utube, or file a free legal consultation with Greenberg & Bederman.

John J. Sellinger Voted 2009 DC,MD Superlawyer

pstrand@gblawyers.com (Greenberg & Bederman) — Tue, 16 Jun 2009 15:43:06 -0500

John J. Sellinger a Super Lawyer

Super Lawyers, an independent magazine adhering to a selection process that is objective and independent of any advertising or payments to nominate its candidate, has named John J. Sellinger a Super Lawyer in its Maryland and Washington DC 2008, and 2009 editions. Lawyers were asked to nominate the best lawyers they've personally observed, were not allowed to nominate an internal lawyer without nominating an external lawyer, and lawyers were not allowed to vote for themselves. This evaluation led to a final selection of our medical malpractice attorney, John J. Sellinger. Congratulations on a job well done!

To learn more about our medical malpractice attorney, John J. Sellinger, read about John or watch his medical malpractice video on Utube. To learn more about medical malpractice law in Maryland, read our Medical Malpractice FAQ, or contact Greenberg & Bederman for a free medical malpractice case evaluation.

High Cost of US Healthcare

pstrand@gblawyers.com (Greenberg & Bederman) — Fri, 12 Jun 2009 08:59:47 -0500

There doesn’t seem to be much you can do to avoid the high cost of health care these days.

In 2008, total spending on health care was $2.8 TRILLION. In case you aren’t sure how much that is, it’s enough to pay for all the goods and services produced in Australia in one year. It’s enough to fund the military of every country in NATO combined. It’s more than the value of every stock on the Toronto Stock Exchange.

It is, in short, a whole lot of money.

For those of us who have health insurance, that $2.8 trillion doesn’t just factor in the trips you make to the doctor or the deductibles that you have to pay. It also factors in your monthly insurance premiums, and any prescriptions that you have to have filled. Those of us without health insurance are also contributing a great deal to the overall total.

The vast majority of us in this country aren’t too thrilled about this, but we can tell you with great certainty that HMO’s, pharmaceutical companies and insurance companies are as pleased as they could possibly be with those numbers.

Most of our health care costs are artificial. There is no other aspect of society that prices services the way that health care does. In almost every other part of our economy, the prices are listed prominently for you to see. If you walk the grocery store, the prices of the goods are right there. If you walk into a dry cleaner, they list the prices for everything. If you walk into a bank, they tell you the percentage rates of their CD’s or savings accounts. But when you go to the hospital for treatment you don’t exactly get handed a menu. Instead, you hand over your insurance card, and the hospital then charges the insurance company….whatever. It could be $500 or it could be $5000. There are hundreds of factors involved. Did your insurance company negotiate lower prices? What is the hospital’s billing policy that month? Or better yet, what is it that day? The free market works pretty much everywhere except for health care.

Then you have to factor in whether or not your insurance company will deem to pay the bill. Were all of the tests and procedures pre-approved? Were all the tests and procedures that were performed covered on your policy? And even if they are, will your insurance company decide to pay for them? That’s a question that could go either way. Your average insurance company will usually deny at least one or two things initially and then hope you accept their denials. They are quite rightly working under the idea that many of you either haven’t read or don’t understand your policy.

In other words, the costs of health care are….whatever the hospitals and insurance companies say they are.

Fortunately, the one element of health care that does have a price list is the medication. Bear in mind that we say “fortunately” in a very loose fashion, because all this openness in pharmaceutical pricing does is tell us that the prices are ridiculously high. Again, there is usually insurance involved, but there is usually a list of pills that they won’t cover, which are often pills that aren’t available in generic form. This means that the latest, most groundbreaking medicines will cost you top dollar.

And Americans do pay a very high amount for their drugs. The pharmaceutical lobby has made it a priority to keep any government run health care plans like Medicare or Medicaid from negotiating for lower prices. This is why a pill that costs you six cents in Canada costs you six dollars in the United States.

For individuals, negotiation is impossible. The only way that an individual could negotiate for lower prices on a particular pharmaceutical is if he or she threatened to buy a different brand of that medication, but since the patent for any particular drug lasts for twenty years after FDA approval, there often is no different brand of that medication.

In other words, pharmaceutical costs are an enormous part of our health care expenses. In order to help people lower them, we would like to make you aware of a service that is being offered for free to Maryland citizens.

The Maryland Rx Card Program is offering a free service where anyone who presents a membership card at participating pharmacies can expect savings that range from 30% to 75%. According to the website:

“This program can be used by people who have Health Savings Accounts (HSA's), High Deductible Plan's, and Medicare Part D (non-covered drugs). The program can be used as a standalone benefit or to get discounts on non-formulary medications (prescriptions not covered by insurance).”

Considering how many prescriptions are not covered by insurance, saving between 30 to 70% could be a substantial amount of money. It costs nothing to join this program, and joining is as simple as visiting a website and filling out your name and address.

In the meantime, if you or a loved one in Virginia, Maryland or the District of Columbia has been injured in an auto accident, and if you feel that your insurance company has not lived up to its obligations to you, contact Greenberg and Bederman for a free legal consultation today.

To learn more about our car accident lawyer, please read about our car accident lawyer Jason Fernandez, or view his auto accident video on Utube.

Frivolous Law Suits

pstrand@gblawyers.com (Greenberg & Bederman) — Thu, 11 Jun 2009 12:44:25 -0500

The odds are that you have never heard of a woman named Janine Sugawara. And the odds are that after a few months, her name will completely slip your mind.

But it is entirely probable that her recent lawsuit will put her in a somewhat notorious pantheon of “frivolous lawsuits,” which means that she will be given a title rather than a name by tort reform organizations. And she can expect this title to be bandied about for the rest of time.

As a bit of background, Ms. Sugawara recently filed a class action lawsuit against the Quaker Oats Company. Her gripe was that after four years of purchasing and eating Crunch Berries brand cereal, she discovered that there was no actual fruit involved.

Through the law firm that took her case, Ms. Sugawara’s intention was to collect damages not just for herself, but for everyone else who was bamboozled at the breakfast table. It should be noted the law firm that she was working with had previously filed an unsuccessful suit against the Kellogg’s corporation over the lack of actual fruit in Fruit Loops.

The presiding judge over the case quite rightly threw the case out of court, claiming in his statement:

“In this case . . . while the challenged packaging contains the word "berries" it does so only in conjunction with the descriptive term "crunch." This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a "crunchberry." Furthermore, the "Crunchberries" depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains "sweetened corn & oat cereal" and that the cereal is "enlarged to show texture." Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist.”

As we said before, you probably won’t remember her name, but you will certainly remember her lawsuit. Ms. Sugawara will probably be known as “The Crunch Berry Lady,” and she will be lumped in with “The McDonalds Coffee Cup Lady” and the “Million Dollar Pants Guy.” She will be offered up as Exhibit A by tort reform organizations every time they are pushing for restrictions on the rights of regular citizens to go to court. In all probability, this ridiculous case will be offered up as proof that the system is somehow “broken.”

We would argue quite the opposite. We think that had the case been allowed to continue, then maybe the tort reformers would have a point. (In which case, the makers of “grape” and “orange” flavored soda would have had to seriously rethink the titles of their beverages.) But it wasn’t allowed to continue. It was recognized as ridiculous and thrown out.

One aspect of the tort reformers beliefs that we find profoundly troubling is that they seem to believe that you somehow need to QUALIFY in order to have access to the courts. They seem to believe that the only lawsuits that are important are theirs. Lawsuits that involve injuries and illnesses and poorly manufactured and dangerous products are considered bad for business and a waste of time. And we find that very hypocritical, because insurers, HMO’s, pharmaceutical companies and manufacturers of all shapes and sizes (in other words, those who fund and vocally support tort reform organizations) spend a great deal of time in court on the plaintiffs side of the judge’s bench. Yet no one is suggesting that these lawsuits are somehow a waste of time, or “frivolous.”

Our court system is not a country club. It is not available for some and not others. It exists to make sure that ALL of our citizens have a legal venue to settle their grievances, be they rich or poor, black or white, liberal or conservative. And yes, there are lawsuits that are ridiculous, but what do the tort reformers propose? Only allowing lawsuits that involve millions of dollars? Warring CEO’s fighting over billion dollar percentage points in a merger are okay but someone breaking their leg on an unmarked wet floor is not?

Justice is blind, not wearing an Yves St. Lauren pantsuit and checking her stock portfolio. Our laws apply equally to everyone. Try to remember that before you sign a petition or vote for a ballot initiative that keeps you from getting your day in court.

To learn more about persona injury issues, please read personal injury. To learn more about our personal injury lawyers, Andrew Bederman, Roger Greenberg, or Jason Fernandez, please read their bios, or view our personal injury videos at Utube.

Cerebral Palsy at Frederick Memorial Hospital

pstrand@gblawyers.com (Greenberg & Bederman) — Mon, 08 Jun 2009 09:03:35 -0500

Ryan Dineen has cerebral palsy, and it’s possible that he didn’t have to get it.

On May 7, 2000, Ryan’s mother Suzette was brought into Frederick Memorial Hospital. She was suffering from abdominal pain and was vomiting. She was also pregnant.

Frederick Memorial Hospital is not a small hospital, but it is not an overcrowded and understaffed one either. And while Frederick, Maryland is by no means a small town, it certainly isn’t Baltimore or Washington, D.C.

So the fact that Suzette Dineen was made to wait for three hours before receiving medical care defies all logic and reason. It also defied hospital policy.

According to a piece in The Frederick News:

“She arrived shortly after 5 a.m., complaining of pain, vomiting and diarrhea, Bekman said.

Instead of being taken immediately to the labor and delivery suite, Dineen was kept in the emergency room for about three hours without being examined by a physician, he said.

Nurses monitored Dineen and administered drugs for her pain, he said. At 5:45 a.m., a nurse took the baby's heart rate.

According to a complaint written by Bekman and his legal partner Julia Lodowki, a physician finally saw Dineen shortly after 8 a.m., after a nurse could not find the baby's heartbeat.

Bekman said the hospital's protocol is that women more than 20 weeks pregnant who are visiting the hospital complaining of abdominal pain should be monitored in the labor and delivery suite.”

This story does not have a happy ending. Ms. Dineen was rushed into an operating room for an emergency c-section delivery. Her son Ryan was born with cerebral palsy, and must be the recipient of specialized care for the rest of his life.

The attorneys for the hospital, doctors and nurses who failed to attend to Ms. Dineen made it seem as if the cerebral palsy was simply fait accompli, or just “one of those things that happened.” But we believe that the argument of Ms. Dineen’s attorneys was completely valid. One of the major causes of cerebral palsy is a lack of blood flow to the fetal brain, and it does not take much time for a lack of blood flow to do major damage. The three hours during which Ms. Dineen was ignored was more than enough time for that damage to occur.

What apparently made this case newsworthy were not the actions of the doctors, or even the nine years that it took for this case to be resolved in court. What seemed to garner the attention of the media in this case was the amount of money that was awarded to Ms. Dineen.

She was awarded $4 million, with $350,000 of that judgment for pain and suffering. While that may strike some people as a lot of money, we can practically guarantee you that it won’t seem that way to Ms. Dineen. It should be understood that she has been bearing the multiple costs of her son’s condition on her own for nine years. That’s nine years worth of treatment, medicine, visits to the doctor and therapy, both physical and mental.

The popular narrative is that Ms. Dineen is now “rolling in it,” or has “hit the jackpot.” But anyone with an understanding of her circumstances can tell you that that isn’t the case. In all probability, Ms. Dineen will have to put a great deal of that money towards considerable debt and the rest of it will have to go towards ensuring the care of her developmentally disabled son. And regular, run-of-the-mill health care is expensive enough, much less the specialized care that cerebral palsy requires. This is a factor that should be considered before bemoaning the “outrageously high settlements” of lawsuits.

As far as we are concerned, Ms. Dineen’s judgment just barely qualifies as a “victory.” And if you were to ask her if she would rather have the $4 million or a son that was born without cerebral palsy, we have a good idea as to which option she would choose.

To learn more about medical malpractice issues and cerebral palsy, please read our cerebral palsy page. To learn more about our medical malpractice lawyer, John Sellinger, please read John Sellinger's bio, or view his video at Utube.

Medical Malpractice Limits - Drive Doctors Away?

pstrand@gblawyers.com (Greenberg & Bederman) — Mon, 08 Jun 2009 08:53:37 -0500

The state of Nevada came awfully close to getting back to normal this month. Well, as “normal” as Nevada gets, anyway.

Back in April, the Nevada State Assembly passed a bill that would have removed the current limits on non-economic damages for medical malpractice cases. As it stands now, the limit is $350,000. What this means is that the most that you can collect for any damages that don’t actually cost you money in the long run is $350,000. And thanks to the Nevada Senate, it looks like it’s going to stay that way for the foreseeable future:

An Assembly-approved bill to lift the $350,000 voter-approved caps on the "pain and suffering" damages patients can secure from their doctors in medical malpractice cases was killed in the Senate. The higher limit would have applied only in cases where patients could prove they were injured by the "gross negligence" of their doctors. The bill had been introduced in response to complaints from hepatitis C patients in Las Vegas.

We’ve discussed what we think about such caps before, so in the interest of saving time we’ll simply refer you to an article that we wrote about how a $250,000 malpractice cap in Texas is working down there.

What we found interesting was a few of the comments about the bill from some of the Nevada politicians who were in opposition.

Assemblyman Joe Hardy, who voted against the bill, was quoted as saying:

"We have a challenge of getting enough doctors in Nevada...This will decrease the level of care.”

We have a hard time understanding how holding bad doctors accountable for their actions would somehow make the level of care worse. If anything, we think it would do the exact opposite. But aside from that, Assemblyman Hardy seems to be laboring under the myth that there was a mass exodus of doctors in Nevada due to medical malpractice cases, or that no new doctors wanted to practice in the state. The Nevada Board of Medical Examiners would beg to differ.

The NBME is not a partisan group. They are the people that award licenses to practice medicine in Nevada. In that capacity, they keep pretty good track of exactly how many doctors are practicing within their borders.

According to their 2008 Annual Report:

“…from 1980 through 1992, the ratio of physicians to 100,000 population was relatively static, staying between 140 and 149 physicians per 100,000 population throughout these years. Starting in 1993 through 2005, the ratio moved up to the next range, staying between 153 to 161 physicians per 100,000 population through this period. Beginning in 2006, the ratio has steadily climbed from 168 to 169 and then (in 2008) 172 physicians per 100,000 population.”

Basically what that means is that the level of doctors per 100,000 people has either remained essentially the same or it has climbed every year since 1980. And since 1999, the official license count has done nothing but go up, from 5012 practicing physicians in 1999 to 6896 practicing physicians in 2008. If there was a massive exodus of doctors from Nevada, it certainly wasn’t reflected in these numbers. Also of note in the report is the number of disciplinary actions that the State Medical Board has undertaken since 1999. Of all the doctors practicing in Nevada, only 57 have lost their licenses since 1999. They aren’t exactly draconian out in Nevada.

The legislation that the Nevada Assembly passed and the Senate killed would have allowed for unlimited damages in cases of gross negligence. With only 57 doctors in ten years losing their licenses, it’s hard to imagine that gross negligence occurs enough to make a real dent in the pocketbooks of medical malpractice insurance companies.

This brings us to another aspect of the bill: the argument that the removal of a damages cap would force insurance rates to skyrocket.

At Greenberg and Bederman, we have been practicing law for almost a quarter of a century, and a great deal of that time has been spent dealing with insurance companies. And we can tell you with great certainty that the only thing that can force an insurance rate to skyrocket it is the insurance company itself. The rates don’t spontaneously rise and fall on their own accord.

It’s clear that all of the popular arguments against such damage caps have very little to do with a concern for the state of medicine in Nevada. Doctors weren’t priced out of practicing medicine, and insurance companies didn’t go broke. But what has happened is that a fixed rate has been put on human suffering for no good reason, no matter how significant that suffering is, and there is nothing good about that.

To learn more about medical malpractice issues, please read medical malpractice. To learn more about our medical malpractice lawyer, John Sellinger, please read about John Selinger, or view his medical malpractice video on Utube.

Is Getting Ripped Off Usual and Customary?

pstrand@gblawyers.com (Greenberg & Bederman) — Fri, 29 May 2009 09:49:59 -0500

Is getting ripped off “Usual” and “Customary?”

For the health care consumers all over the country, that has apparently been the case.

Back in January, New York Attorney General Anthony Cuomo pulled the plug on Ingenix, owner and operator of the biggest health care billing software in America.

The reason Ingenix was targeted by Mr. Cuomo was because of its billing practices when policyholders used out of network services. The “out of network” option is offered as a service on many health care policies, for which policy holders usually pay extra. If through choice or circumstance you found yourself using the services of a health care provider who isn’t affiliated with your health plan, the “out of network” option is supposed to cover somewhere in the neighborhood of 80% of the cost while you pay the rest.

But it didn’t work like that in real life. If the insurance companies simply said “Ok, you have a bill for $1000, we’ll pay $800 and you’ll pay $200,” Ingenix wouldn’t have had a reason to exist at all. Instead, Ingenix used its software to apply a sort of alchemy to its billing practices, with the end result being that policyholders who were using out of network services were being forced to pay way more than they should have. The rub in the software came in what was called the “Usual and Customary” rate, with “Usual and Customary” meaning the “average” costs for a given service.

The problem is that with health care, there is no such thing as a “Usual and Customary” rate. Big insurance companies are able to negotiate lower costs for services because of the volume of care seekers that they bring to hospitals, clinics and doctors’ offices. Once you go out of network, you no longer have the weight of your insurance company’s negotiating skill behind you. So the costs for your treatment vary wildly from place to place. A sprained ankle in Tacoma, Washington might cost much more than the same injury in Yuma, Arizona. It depends on who owns the hospital, whether the facility is independent or whether an HMO runs the facility, or what their billing policies are. Health care is quite literally wide open. There is no “invisible hand of Adam Smith” keeping the price of services up or down.

So for the sake of argument, let’s say you are on vacation in rural Vermont and you break your leg. The non-negotiated, out-of-network costs might be a lot higher than the costs of the same injury at the hospital you would go to in Bethesda, Maryland, Arlington, Virginia or Washington, D.C. So if you paid extra on your policy every month for out of network costs, you would probably assume that your insurance policy would pick up 80% of whatever the hospital in Vermont is charging you. But instead, your insurance policy is picking up 80% of what Ingenix decides is “Usual and Customary.”

And that’s exactly what the problem was. Attorney General Cuomo discovered that Ingenix was skewing its “Usual and Customary” rates so that everything was reported as much cheaper than it was in real life, which lowered the amount that insurance companies were obligated to cover. So if the guy with the broken leg in Vermont is presented with an out of network bill for $4000, the insurance company can say “According to our calculations, the Usual and Customary rate for your injury is $2500, of which we will pay $2000.” This leaves you on the hook for $2000, as well as all the extra money you had been paying each month for the out of network coverage, which was evidently completely useless due to Ingenix.

It wasn’t only the policyholders who were getting stuck with huge medical bills. Most people don’t have the amount of cash on hand that it takes to pay for enormous medical expenses (this is why they had insurance, after all,) so the providers end up selling their debt to bill collectors for nickels on the dollar just so they can recoup some of their losses. So both the policy holder and the healthcare provider lose out, but guess who doesn’t? The insurance companies that use Ingenix software for their out of market billing. Which is to say almost all of them.

All of this is bad enough, but what makes the whole scenario even worse is that Ingenix was actually a wholly owned subsidiary of United Health Care, one of the biggest health care insurance providers in the United States. This is like a professional football team being allowed to bring its own referees to the Super Bowl. Who do you think is going to win out?

We would like to say that this case of price fixing was an isolated incident, but we can’t for two reasons. The first reason is that this rigged software was used by practically the entire American health insurance industry. How “isolated” could something be if the entire system is using the same flawed data? The second reason is that this is not the first episode of big insurance using skewed data in their software to maximize profits at the expense of their policyholders. Auto insurance companies are still to this day using a program called “Colossus,” which uses skewed data to “average out” the costs of physical injuries. Just like Ingenix, Colossus also leaves policyholders on the hook for thousands of dollars worth of medical costs that should have been paid by the insurer in the first place.

While it’s a good thing that Ingenix was essentially forced out of business by Mr. Cuomo, and it is good that users of Colossus are facing similar investigations, these changes have come a little too late for the hundreds of thousands of patients and medical professionals who have been ripped off as a result of these skewed computer programs. We think that the country would be better served if the states or federal government were more proactive about examining healthcare billing software. It’s good that we have firemen, but we have more of a need for Smokey the Bear.

The data that these companies use to determine pricing should be open to review, not kept as a trade secret. Nor should any companies that develop similar software have any financial ties to insurance companies. The fact that Ingenix was owned by one of the biggest health care companies in America is a massive conflict of interest, and one that cost Americans millions of dollars.

Greenberg & Bederman is a personal injury law firm located one half block from the SIlver Spring metro station. We have been handling personal injury law since 1985. To learn more about our personal injury lawyers, please read about Andrew Bederman, Roger Greenberg, or Jason Fernandez, or watch some of our personal injury videos on Utube.

Personal Injury Tort - Is It Broken?

pstrand@gblawyers.com (Greenberg & Bederman) — Tue, 26 May 2009 12:48:01 -0500

The Tort System: It Stops Being “Broken” When It Starts Being You

For those of you are unaware of what tort reform means, it is a political movement whose proponents believe that our current judicial system is too easy for regular people to use. That probably isn’t the way that they would put it, but that’s essentially the centerpiece of the argument. They want caps on the sorts of damages that citizens can receive. They want restrictions on the sorts of lawsuits that people can file. They want severe restrictions on punitive damages. They want to do business in America without the crushing, stagnating, profit killing responsibilities of accountability towards the people who buy their products or use their services.

It isn’t very hard to put yourself in their shoes. The majority of the people involved in the tort reform movement have direct ties to insurance companies, pharmaceutical companies and product manufacturers. They often think of things in terms of profitability, and they probably view lawsuits as a problem that is to be solved, like improving efficiency or finding a cheaper supplier for parts. If you see everything in terms of a balance sheet, it’s hard to see actual human beings who have suffered real damages from the results of your business. Instead you think about the money you could be making if it weren’t for the insurance premiums and attorneys fees.

But every so often, even staunch advocates of tort reform find themselves in instances where they need the aid of the courts, and that makes them rethink their whole outlook, especially when they discover that the tort restrictions that they supported have prevented them from receiving fair compensation for their damages. Former senator Trent Lott (R-MS) serves as a perfect example of this.

In the wake of Hurricane Katrina, thousands of people in Louisiana and Mississippi found themselves with their homes ruined by the devastation of a category three storm. Katrina lasted almost a week, and at its peak the wind speed was moving at 175 miles an hour. The preliminary damage estimates in terms of property was $100 billion.

Among those who found themselves with lost property was Senator Lott. He owned a beach house in Mississippi that was deemed a total loss as a result of the hurricane. Like thousands of people all over the Gulf Coast, he filed a damage claim with State Farm. And, like thousands of people all over the Gulf Coast, he had his claim promptly and utterly rejected by State Farm.

It’s important to note that prior to this rejection, Senator Lott was one of the biggest advocates of tort reform in the Senate. Here are just a few of his quotes and press releases on the subject.

"The Democrats seem to think that the answer is a lawsuit. Sue everybody."
- Sen. Trent Lott, 7/20/01

"I'm among many Mississippi citizens who believe tort reform is needed."
- Sen. Trent Lott, 5/8/02

"You know, obviously we should [enact tort reform]...Someday it will happen, and the sooner the better."
- Sen. Trent Lott, 1/24/01

"Sen. Trent Lott of Mississippi today credited the agenda of tax cuts, deregulation and tort reform initiatives passed by the Congress and signed into law by President Bush with the overall upturn in the national economy."
- Sen. Trent Lott press release, 12/2/05

"If their answer to everything is more lawsuits, then yes, that's a problem, because I certainly don't support that."
- Sen. Trent Lott, 8/2/02

"It's sue, sue, sue... That's not the answer."
- Sen. Trent Lott, 8/4/01

But once Senator Lott got a taste of how the very industry that he backed through speeches, votes on the Senate floor and legislation actually operates, he didn’t much like it. So he filed a lawsuit against State Farm, in which he hoped to force the insurance company to pay for his damages.

A more recent and even more high profile defection from the tort reform movement occurred on June 6, 2006, when Judge Robert Bork fell and injured himself while getting ready to deliver a speech at the Yale Club in New York City. According to the Wall Street Journal:

“Bork was at the Yale Club last June to speak at an event sponsored by The New Criterion, a monthly review of the arts and intellectual life. According to the suit filed in federal court in Manhattan, the club failed to provide steps and a handrail to climb onto the dais. Bork fell backward as he was attempting to climb the dais, striking his leg on the stage and his head on a heat register, the suit says.”

The physical damages involved a massive bruise to his leg that, according to the complaint, required surgery and months of physical therapy to heal properly. Judge Bork believed that the Yale Club was negligent in that it didn’t provide a suitable railing or staircase on the way up to the speaking dais, thus directly contributing to his injuries.

Prior to his accident, Judge Bork was very much for tort reform. In fact, one of his more famous quotes on the subject compared the United States civil justice system to piracy on the high seas:

“Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories. Today's merchant enters the marketplace with trepidation - anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.”

This quote was from 1995, but it basically encapsulates Judge Bork’s entire judicial career. He held the tort system in very low regard, and actually lost his chance to be a Supreme Court Justice in part due to his extreme views on tort law and punitive damages. Yet there he was in 2006, filing not only a lawsuit to cover his damages but also seeking punitive damages in his complaint.

In the space of three years, two major proponents of tort reform have learned a very valuable lesson, which is that perhaps our tort system isn’t nearly as “broken” as it seems to be. The initial reaction would be to call Senator Lott and Judge Bork hypocrites, but we actually view it as an example of how ideology doesn’t always line up perfectly with reality. They believed something, and real life proved their beliefs wrong. They believed that our court system was broken right up until the point where they discovered that they would need it.

To learn more about personal injury in Maryland, please read our maryland personal injury page. To learn more about our personal injury lawyers, please read about Jason Fernandez, Andrew Bederman, or Roger Greenberg, or view our personal injury videos on Utube.

When Do I Need A Personal Injury Lawyer?

pstrand@gblawyers.com (Greenberg & Bederman) — Wed, 20 May 2009 08:51:25 -0500

When Do I need A Personal Injury Lawyer?

In the aftermath of an accident, it can be sometimes be difficult to know if you need a lawyer. Many accidents fall squarely in the “no harm, no foul” category, in that the damage to the property or persons of those involved is negligible. For instance, if the accident is a fender bender car accident with minimal property damage, you should be able to handle your damages through the insurance companies. Or if you slip and fall in a restaurant but don’t injure anything but your pride, there is no need to contact an attorney at all.

But the stakes change when the accident involves medical treatment. This is when the liability involves more money, and insurance companies often take steps to make sure that they pay out as little as possible.

There is often a drastic difference between what an injury victim should receive and what an insurance company is willing to pay. Having an attorney to represent your interests can be the difference between receiving fair treatment and not even receiving enough to cover your damages. What follows are some situations where you should contact a personal injury attorney as soon as possible.

Serious Car Accidents:Any accident that involves a complete loss of your car and/or a stay in the hospital should not be handled without legal counsel. When medical treatment is involved, insurance companies will often try to deny liability outright or offer an artificially low settlement in order to minimize the payout. Handling a car accident injury claim without an injury lawyer is practically a guarantee that your needs will not be realistically met.

Accidents with Trucks or other Commercial Vehicles:Tractor trailers and other commercial vehicles are on the road for no other reason than to make money, and as a result the laws regarding commercial insurance coverage are different. A commercial vehicle might have multiple policies, with the driver having one policy and the freight company having another. What often happens in the event of a commercial vehicle accident is a game of “pass the buck,” where one insurer will claim that the other insurer is more liable than the other and vice versa. Commercial insurance companies are also notorious for being closed mouthed and difficult during investigations. An experienced personal injury attorney can help you sort out the liability issues, determine who was at fault, and help you receive fair compensation for your injuries and property damage. And considering the harm that a truck or tractor trailer can do, it is a safe bet that there will be both serious injuries and major property damage. The stakes are too high in a situation like that to go it alone.

Medical Malpractice: Doctors make mistakes all the time, but not all medical mistakes are necessarily a medical malpractice. If a medical provider deviates from the standard of care, and causes harm to the patient, with damages, there may be a negligence claim against the medical provider. Even if the doctors are upfront about the mistake and the insurance company offers you a settlement, there could be elements of that settlement that are inadequate. An experienced personal injury attorney should be able to tell fairly quickly whether or not your settlement offer is a decent one.

Falls:On the surface, slipping and falling might seem to be more comical that damaging, but the reality is that falls are a major cause of serious injuries and deaths. Because slipping and falling can be embarrassing, even people who are severely injured are sometimes hesitant to consult with an attorney. But businesses, hotels and rental properties are required to maintain safe premises for customers, guests and tenants. Unmarked wet floors, poorly lit staircases or cracked flooring are only some of the examples as to how negligent maintenance by an owner or manager has resulted in serious injury. A fall might be embarrassing, but if you were seriously injured due to circumstances that were not your fault, you have every right to seek compensation for your damages. An injury attorney can conduct an investigation and help determine whether or not your injury happened due to negligence.

Despite the sunny advertising about being a “good neighbor,” the average insurance adjuster is not in the business of writing big checks. In fact, most insurance adjusters, whether they work for auto insurance, commercial vehicle insurance, medical malpractice insurance or property insurance, are actually financially rewarded for paying out less in claims. It is therefore in their best interest to pay you as little as possible. To that end, they routinely offer artificially low settlements, and engage in manipulative tactics to get you to accept them. A good rule of thumb for dealing with insurance adjusters is that if there is any element of your injury that goes beyond the concrete arithmetic in front of you, then any settlement that is offered to you should be thoroughly scrutinized by a personal injury attorney. For instance, if the injury was particularly painful, then that pain and suffering should be compensated. If you are unable to return to work because of your injury, then you should be compensated for your lost income. If you will have to go through rehabilitation to recover from your injuries, the rehabilitation costs should be covered.

If your adjuster offers excuses for not providing for these costs in the settlement, or if it seems that he is trying to steer the blame for the accident over to you, or if he says things like “We don’t want to make mountains out of molehills,” you can be absolutely sure that this means you aren’t being treated fairly.

Any experienced personal injury attorney should be able to take a look at your settlement offer and determine whether or not it is adequate to cover your damages, both present and future damages. If insurance companies would simply be forthcoming and generous from the beginning, we injury lawyers may go out of business. An experienced injury lawyer can judge what any settlement is lacking and the best way to proceed.

In any accident requiring medical treatment, it is simply better to be safe than sorry. Consulting an injury attorney after a serious accident can keep you from becoming victimized a second time. You shouldn’t find out that your settlement is inadequate after you’ve already signed it.

Greenberg and Bederman is a personal injury law firm based in Silver Spring, Maryland. Our attorneys have provided legal counsel for the injured of Maryland, Virginia and Washington, D.C. since 1985. We have helped secure high settlements and judgments for those who have been injured due to car accidents, medical malpractice, or other types of personal injury. If you or a loved one in the greater Washington, D.C. area has been injured in an accident, contact Greenberg and Bedermanfor a free legal consultation today.

To learn more about personal injury law, please read our personal injury page on our website. To learn more about our personal injury lawyers, please read about Andy Bederman, Roger Greenberg, or Jason Fernandez, or visit our personal injury videos on Utube.

Kanye West's Mother Dies

pstrand@gblawyers.com (Greenberg & Bederman) — Fri, 15 May 2009 11:01:23 -0500

Physician, Heal Thyself

As attorneys who represent the injured, we often find ourselves in direct opposition to insurance companies, tort reform organizations, and HMO’s.

There aren’t many subjects on which we agree. We believe that those who have been injured due to the incompetence or negligence of others deserve full compensation, and they believe that there should be strict limits on what sort of damages the injured can recover. We believe that the rights of Americans to access the court system should not be limited in any way, while some believe that sort of freedom is bad for business. We believe that the primary goal of an insurance company should be to honor the needs of their policyholders, while they treat the ill as though their needs come a distant second to honoring the needs of their stockholders.

There is, however, one subject upon which we do agree. Insurance companies, tort reform organizations and medical professionals believe that there is a real problem in this country involving medical malpractice. We believe that as well. But their contention is that the problem centers on the victims, while our position is that the problem comes from the doctors, nurses and medical professionals who don’t do their jobs properly.

If you take a look at your average tort reform web site, you will find page after page of reports and statistics that tell you about high insurance premiums, so-called “frivolous lawsuits,” and trial lawyers who are inevitably described as “greedy.” But you won’t find much about the actual doctors who are being sued.

Medical malpractice lawsuits happen for a reason. Perfectly healthy people don’t walk into our office and announce that they would like to sue their doctor. A medical malpractice lawsuit happens when there are real damages that come from real professional negligence by medical providers. So we find it strange that these organizations rarely acknowledge that doctors make preventable mistakes, that people suffer as a result, and that the medical system as currently designed by self enforcement allows some doctors with extremely shoddy records to keep practicing medicine. As far as we are concerned, that’s the heart of the medical malpractice “crisis.”

Bad Doctors, Not Bad Law

11/11/2007: Donda West, the mother and onetime manager of rapper Kanye West, died Saturday in Los Angeles. BBC News quotes her publicist as saying she passed away "as the result of complications from a cosmetic surgical procedure," but gave no more details. West's spokesman said the family "asks for privacy during this time of grief."

The doctor who performed the surgery was named Jan Adams, who was something of a celebrity in addition to being a plastic surgeon. He had appeared as a panelist on a show called The Other Half, which was a sort of an all male version of The View. He had also set himself up as a go-to medical issues pundit for news programming, appearing on CNN, ABC, and NBC, and he was also featured regularly on the Discovery Channel. Mr. Adams is a pretty good looking guy, and comes across as charming and personable.

But he apparently wasn’t a very good surgeon.

Prior to his operation on Ms. West, Dr. Adam’s had been named in a series of separate medical malpractice lawsuits. The complaints involved a sponge left in during surgery, lack of informed consent, and professional negligence and fraudulent misrepresentation. There is also a rather unsettling history of DUI arrests, as well as allegations of abuse. Yet after all of this, Dr. Adams was only required to surrender his license to practice medicine in March of this year, which is almost a year and a half after Ms. West died after surgery and several years after multiple lawsuits and run-ins with the law.

It often takes a high profile example of a systemic problem to bring that problem to the attention of the general public. The case of Dr. Adams and Ms. West led many people to ask why he was still able to practice medicine after years of poor performance and erratic and irresponsible personal behavior. We believe that Dr. Adams was only one example of the medical profession as a whole failing to police itself.

A 2003 article from the Virginian Pilot describes in graphic detail how lax the standards are with state medical boards, using statistics from the National Practitioner Data Bank as examples. In the article, author Liz Szabo notes that there are hundreds of doctors in Virginia alone who still have their licenses, even after episodes of gross incompetence and criminal convictions, up to and including murder. If a state medical board is hesitant to revoke the license of a Norfolk doctor who murdered his wife, as the article states, it seems less of a surprise that someone like Jan Adams was still practicing even after multiple lawsuits, settlements, judgments and arrests.

The argument for such low standards is essentially that since it takes so much time and money to earn a medical license, state medical boards are willing to offer multiple chances to doctors who make mistakes. In fact, nurses are held to tougher employment standards then doctors. While we realize that even the most competent and professional of doctors can make errors during the course of treatment, it is clear that the standards need to be improved. You have to wonder what the outcome would have been for Ms. West had the California medical board taken action against Dr. Adams when it became clear that there was a problem with his competence.

It is dishonest of tort reformers to make it seem like the problem is just the court system. The idea that the medical profession is the blameless victim here does not hold water. And we fail to see how limiting the victims’ access to the courts while bad doctors are allowed to keep practicing will solve anything.

If you or a loved one Maryland, Virginia or Washington DC has been injured due to the actions of a doctor or other medical professional, contact Greenberg and Bederman for a free legal consultation today.

If you want to learn more about medical malpractice issues please read our medical malpractice page. If you want to learn more about our medical malpractice lawyer, please read about John Sellinger.

Patient's Bill of Rights

pstrand@gblawyers.com (Greenberg & Bederman) — Fri, 08 May 2009 10:26:52 -0500

The Patient’s Bill of Rights

You are not simply a set of problems that need to be solved. You are a human being with rights.

This is the basic premise behind the Patient’s Bill of Rights, which was created in 1998 by the U.S. Advisory Commission on Consumer Protection and Quality in the Health Care Industry.

This was an incredibly important development for patients (meaning ALL OF US,) in America. Prior to the creation of the Bill, there were no real rules in place for how the sick or injured should be treated, and the standard of care absolutely reflected that.

Patients were routinely chewed up and spit out by the HMO system, who to this day value profit margins over patient care. Patients weren’t adequately informed about their treatment and options, confidential patient information was guarded loosely if it was guarded at all, and patients requiring emergency services were financially penalized for not PRE-APPROVING them. And these were only some of the problems.

This is not to say that the creation of the Patient’s Bill of Rights reformed the industry overnight. Patients still have to battle tooth and nail with insurance companies over payment, and adjusters still engage in shady “wait them out” games with both patients and hospitals. But at least with the Bill we know where we are supposed to stand and we know how we are supposed to be treated.

What follows is a basic summary of the contents of the Patient’s Bill of Rights. If you or a loved one in Maryland, Washington D.C. or Northern Virginia feel that the standard of care that you received has not lived up to the premises laid out in the Patient’s Bill of Rights, contact the Silver Spring, Maryland injury law offices of Greenberg and Bederman.

Information Disclosure: This area of the Bill outlines exactly how you are supposed to be informed by your medical professional. There should be nothing vague about your treatment options. You should be told clearly in easy to understand terms the nature of your problem, its effects on your health and what your treatment options are. For more information on being properly informed as a patient in Maryland, follow this link.

Access to Emergency Services: You have to wonder what sort of country we live in when a patient in dire need of care has necessary treatment delayed because someone is worried about getting paid. That is now officially unacceptable behavior thanks to the Patient’s Bill of Rights. If you need emergency treatment, the first worry of the medical staff that is treating you should be administering that treatment. It is not acceptable for you to be financially penalized for not pre-authorizing that treatment. You might wonder how a person can be expected to see into the future to pre-authorize emergency care, but many insurance companies apparently believe that we are just too lazy to utilize our natural precognitive abilities. The refusal to pay for needed emergency treatment like ambulances or emergency surgeries on the grounds that they were not applied for in advance happens more often that you think. This is patently absurd, and the Bill points that out.

Participation in Treatment Decisions: You have the right to take part in deciding your course of treatment. You are not a passive recipient of health care. A doctor, HMO or insurance company might decide on what is easy or cost-effective rather than what is best for you if they are left to their own devices. Not only do you have a say in your course of treatment, but your immediate family has that right as well in the event that you are incapacitated.

Considerate and Respectful Care: Doctors, nurses or other staff have absolutely no right to discriminate against you based on your race, religion, age, sex, or any reason at all. Nor do they have the right to mock you or be inconsiderate of your feelings. Sarcastic comments from medical professionals might be great for television entertainment, but they have no place in the real world.

Confidentiality: Your health records are your own. They are not public information, and should not be made available to anyone except you and any medical professional that is directly concerned with your treatment. You also have the right to read your medical records and ask that alterations are made if you find something that is inaccurate.

Complaints and Appeals: You have the right to have any complaints that you have reviewed quickly, and reviewed in an objective manner. That means ANY complaints. Complaints about your standard of care, your waiting time, your health care plan or any aspect of your experience should be treated with respect, and should not result in any recriminations from medical staff or insurance company.

It is important to understand that while this is not called the “Patient’s Bill of Suggestions,” many doctors, medical facilities and insurance companies treat it as such. Not knowing how you should be treated is almost a guarantee that you won’t be treated properly. Your average insurance company banks on what you don’t know rather than on what you do, and quite often they state denials and rejections as if they were the law rather than just their personal decisions.

The Patient’s Bill of Rights makes it perfectly clear as to what you are supposed to expect. Again, if you or a loved one in Maryland (MD) , the District (DC) or Northern Virginia (VA) feels that your rights have been violated by a medical professional, contact Greenberg and Bederman for a free legal consultation today.

To learn more about medical malpractice law, please read our medical malpractice page. To learn more about our medical malpractice lawyer, John Sellinger, please read about John Sellinger, or view his medical malprqactice video on UTUBE.

Wrongful Birth

pstrand@gblawyers.com (Greenberg & Bederman) — Thu, 30 Apr 2009 08:45:35 -0500

Wrongful Birth

What if you went to the doctor and he didn’t give you all the facts? What if that lack of information resulted in you having to face a situation that affects you for the rest of your life?

This is the center of the argument in a so-called “wrongful birth” case, despite what others might say.

For those of you who are unaware of the circumstances that make up one of these cases, it involves a mother who has not been properly informed of a genetic deficiency or other detectable physical condition that exists in the fetus. When the fetus comes to term and is born, the genetic condition manifests itself into a severe handicap, which the mother was neither mentally nor financially prepared for because she was not properly informed.

A case like this is obviously a hot button issue, mainly because it spills over to the question of abortion, which is an ideological minefield on the best of days. But we have to look at this as an issue of the competence of the doctor rather than anything else, no matter what our feelings are on the moral end of reproductive issues.

The strides that medicine has made in terms of childbirth over the last century have been enormous. If you need concrete proof of that, you only need to visit an old cemetery, where if you examine a family plot you will see that as little as 150 years ago, many families had more dead children than live ones.

Nowadays childbirth is a much safer process, and thanks to advancements in testing we can tell if there are going to be any abnormalities in the child before it is even born. Through examining a sample of the amniotic fluid in the placenta (which is a process called amniocentesis,) doctors can easily determine whether or not the fetus is developing normally. And amniocentesis is only one of the tests.

But what happens if the doctor doesn’t give any tests? Or misreads the results of the test that they do give?

That’s what happened to New Yorker Donna Branca, whose doctors decided to forgo amniocentesis. The end result was that she gave birth to a child with Wolf-Hirschorn Syndrome, which, according to an article in the New York Times, results in “…mental retardation, physical disfigurement, inability to speak, seizures and respiratory and digestive problems.”

The story has a semi-happy ending in that Mrs. Branca has come to love her son regardless of his various physical ailments. But what would Mrs. Branca have done if she had all the information? Regardless of what personal thoughts people may have on the matter, if Mrs. Branca had been made aware of her situation, she would have been legally allowed to terminate her pregnancy, which would have spared her the emotional pain and financial costs of caring for the child. And make no mistake about it; raising a child with a disability is expensive. A study from UNC Chapel Hill on families with disabled children states that:

“40 percent of the surveyed families with disabled children who earned between two to three times the federal poverty level (between $36,200 and $54,300 for a family of four, for example) experienced at least one food hardship, including worrying that food would run out or skipping meals because of a lack of money. Fifteen percent of families with incomes at three or more times the federal poverty level ($54,300 and up for a family of four) experienced housing instability, meaning they were unable to pay their rent or had to move in with others.”

Another possibility is that if she had been made aware of the condition of her unborn child she could have at least prepared herself as best as she could for the process of raising a child with Wolf-Hirschorn Syndrome.

Due to the pre-natal care of Mrs. Branca’s doctors, she didn’t have either option.

It is impossible to put yourself in the place of a woman who has to make a decision like that. Some women do take the option to terminate the pregnancy, while others do not. One particular example of a woman who took the option of giving birth to a disabled child was Alaska Governor Sarah Palin, who discovered very early on in her pregnancy that the fetus that she was carrying would be born with Down’s Syndrome. Despite being staunchly pro-life, she wrestled with the decision herself:

She was on a trip out of state at the time, she said, and "just for a fleeting moment I thought, 'No one knows me here; no one would ever know.' ... My amniocentesis came back and then I understood why some people would think they could change their circumstances, just take care of it. Todd didn't even know" the results of the prenatal testing yet, so "no one would know."

But bear in mind, Governor Palin had options that Mrs. Branca did not. She had thorough and professional pre-natal care and accurate pre-natal testing. And it should be mentioned that as Governor of Alaska she had the financial resources to shoulder the additional expenses of raising a child with Down’s syndrome. And, most importantly, she had the time to make the decision on her own.

In any other instance of medical malpractice, the emotional and financial costs of the results of the malpractice are taken into consideration. Despite the very real and very raw emotional aspects of these “wrongful birth” cases, they have to be objectively viewed as not pro-life versus pro-choice issues, but rather as cases of medical malpractice. Was the patient given all the information needed to make a decision or was she not? Was the testing and course of care as thorough and professional as it could have been or was it not? This is what matters in a “wrongful birth” case, just as it matters in a wrong diagnosis case or a case about the violation of the consent law.

The Silver Spring, Maryland Law Offices of Greenberg and Bederman are currently accepting cases involving those who have been injured due to medical malpractice. If you or a loved one in the Washington, D.C. metropolitan area or Baltimore has been injured due to an act of carelessness by a doctor or other medical professional, contact Greenberg and Bedermanfor a free legal consultation today.