DC Metro Area Medical Malpractice Law Blog

Posted by: Salvatore J. Zambri, founding partner     

The DC Department of Health recently released a report, making clear that medical errors are killing more DC residents than all types of car and truck accidents combined.  Per the February, 2010 report, "The leading causes of preventable death in the District of Columbia...were tobacco use (estimated 860 deaths; 16.6 percent of total DC resident deaths), poor diet and physical inactivity (estimated 780 deaths; 15.1 percent), microbial (infectious) agents—excluding HIV—(estimated 240 deaths; 4.6 percent), alcohol consumption (estimated 150 deaths; 2.9 percent), firearms (estimated 140; 2.7 percent), and medical errors (estimated 140 deaths; 2.7 percent). 

According to the comprehensive study and report, motor vehicle accidents account for .6% of the overall deaths in DC--that's 4.5 times less than the deaths caused by preventable medical errors.

The complete report can be viewed by clicking here.

There is a lot of discussion in politics about "tort reform".  The term--"tort reform"--is actually a misnomer, and is better understood as "tort deform".   Some powerful business groups and industries wish to strip Americans of their rights and their access to justice when injured due to medical errors.  Instead of robbing Americans of their fundamental rights and compensating them for the devastating damages they incur as a result of medical negligence, the focus should be on preventing the medical errors in the first place.  That's true reform.

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Posted by: Salvatore J. Zambri, founding partner     

Shriram Harid blogged at the Huffington Post, "President Obama is widely expected to toss Republicans a bone at Thursday's health care summit, by publicly embracing what's known as 'tort reform.'" But as she pointed out, tort reform advocates ignore "how punitive damages [are] essentially the only way that patients have of holding medical professionals and organizations accountable when they kill, maim or injure people through their negligence, ignorance or even malice." Harid remarks, "According to the American Association for Justice . . . legislators ought to be focused primarily on reducing the frequency of malpractice, rather than malpractice litigation, since a mere 2 to 3 percent of all instances of malpractice lead to claims."  And she quotes the President of the Association, Anthony Tarricone, who stated, "The idea of bargaining away the life of injured patients is a very, very bad idea... Opponents of health care have seized on tort reform as a panacea. ... They're bankrupt of any real reforms. The only real solution is eliminating malpractice itself."

Nearly 100,000 people die every year in America due to preventable medical errors--that's like two 747 airplanes fully loaded crashing to the ground every single day.  The last thing the government should ever seek to do is limit these innocent victims' ability to seek justice.  What the medical and business industries should be focusing on is improving medical care to avoid the medical errors that are seriously injuring and killing Americans.

I represent people who have been devastatingly injured due to preventable medical errors, as well as families of those who have been killed due to medical negligence.  If you have any questions about our civil justice system and its impact on overall healthcare costs, please feel free to give me a call.

About the author:

Posted by: Salvatore J. Zambri, founding partner     

As you know, President Obama has called a summit to address the issue of healthcare reform.  The insurance industry, Big Business, the pharmaceutical industry, the American Medical Association (the doctor lobbying group), and other corporate industries have been shouting for limits on patients' rights.  The inescapable truth, however, is that capping damages and otherwise limiting the ability victims of medical errors have to obtain justice will have no appreciable impact on overall health costs.  Medical Malpractice litigation accounts for merely 1/2% to 1% of overall healthcare costs according to the Congressional Budget Office.

During the summit, Senator Dick Durbin (IL) delivered an impassioned defense of the civil justice system. I recommend taking the time to watch this terrific clip by clicking here.

The president of the American Association for Justice recently appeared on CNN’s Anderson Cooper 360 to discuss this issue. That clip is available by clicking here and using the password "justice".

Nearly 100,000 people die every year in America due to preventable medical errors--that's like two 747 airplanes fully loaded crashing to the ground every single day.  The last thing the government anyone should ever seek to do is limit these innocent victims' ability to seek justice.  What the medical and business industries should be focusing on is improving medical care to avoid the medical errors that are seriously injuring and killing Americans.

I represent people who have been devastatingly injured due to preventable medical errors, as well as families of those who have been killed due to medical negligence.  If you have any questions about our civil justice system and its impact on overall healthcare costs, please feel free to give me a call.

About the author:

 Posted by: Salvatore J. Zambri, founding partner     

In a blog at the California Progress Report (1/6), J.G. Preston wrote, "One of the arguments the 'tort reform' crowd uses to justify putting a cap on the amount of money a jury can award to a victim of medical negligence is their assertion that increases in the cost of malpractice insurance are driving doctors out of the business." But "there are more doctors per capita in states that don't limit the amount that can be awarded to victims of negligence than there are in states that have implemented caps. The American Association for Justice broke down the numbers and found there are 21% more doctors per capita in states that don't restrict compensation that there are in states with caps." 

And there are more doctors than ever in America.   Take a look at the most recent data published by the American Medical Association, which confirms this fact.  The publication considers data through 2008.  There were 309 doctors for every 100,000 people that year.   Compared to the 1960s, that's twice as many.  So, not only are there more doctors per capita in states without damages caps, there are also more doctors everywhere in this nation.

The lesson:  Don't let the corporate greed of certain special interest groups convince you that you need to abandon your constitutional rights to pad their pockets.  Victims of the carelessness of others need their rights. 

Be safe, and don't be fooled by well-worn rhetoric.

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Posted by Catherine Bertram, Partner                                     

In a recent opinion piece in Salon, Dr. Rahul Parikh summarized the tort "reformers" arguments which have been in the news lately. These argument about the so called lawsuit crisis are being put forth by insurance companies and the American Medical Association.  Dr. Parikh carefully refutes each one by using the real facts.   He then challenges physicians to focus on the real priority, patient safety. Instead of attacking lawyers who advocate for patients harmed by preventable errors, the resources should be focused on preventing the patient injuries in the first place.   Here is the bottom line directly from his piece:

"Tort reformers neglect the fact that malpractice reform won't save one extra life. To make that difference, insurers, doctors and their lobbyists like the AMA need to find ways to improve patient safety. So for those who push tort reform as a panacea for a sick health care system, working to prevent injuries is a much more noble pursuit than writing up baseless arguments for the back pages of a newspaper."

Instead of focusing on limiting the rights of citizens who have valid claims for harm as a result of preventable errors in health care, we need to focus on how to stop the patients from being injured in the first place.  This involves daily focus by doctors, nurses and most of all the support and resources from hospital leadership.  

I would love nothing more than to come to my office and have no calls from patients or their families after devastating medical errors.   However, that is not the case.  We are seeing more errors and more obvious preventable errors because the system is broken and there is often not accountability.

"I long to accomplish a great and noble task, but it is my chief duty to accomplish small tasks as if they were great and noble."  Helen Keller

 Posted by: Salvatore J. Zambri, founding partner     

 Posted by: Salvatore J. Zambri, founding partner     

The AP (12/11, Tanner) reports that "in 2005, Illinois legislators...passed a measure requiring hospitals to report the deadliest kind" of medical errors, but "the law has yet to be implemented -- and it likely won't be for at least another year." Illinois "budget woes and foot-dragging by special interests are among reasons cited for the long delay." However, "there are finally glimmers of progress. That includes the recent launch of a related state website that tracks hospital infection rates and staff levels, and the imminent start of a search for a vendor to help put the law in place."

Ten years ago, a landmark report proved that medical mistakes kill up to 98,000 Americans yearly. Only a handful of states have decided to do something about it, Minnesota being the first in 2003.  In 2005, Illinois modeled a law after Minnesota's.  Four years later, the law has still not been implemented.  Why?  Foot-dragging by special interest groups.  Finally, though, some progress is being made, including " the recent launch of a related state Web site that tracks hospital infection rates and staff levels, and the imminent start of a search for a vendor to help put the law in place."

According to the AP report, "The law will require hospitals to publicly report so-called "never" mistakes. These are mostly preventable errors with potentially life-threatening consequences -- like the wrong-knee surgery Krzysztof Kordes says Chicago-area doctors performed on him last year or the forgotten sponge left inside a Plainfield woman during breast tumor surgery."

A few things the law requires:

• hospitals required to report major medical errors within 30 days to the state's public health department
• list of hospitals and mistakes will be posted online
• hospitals required to determine cause of errors and to develop corrective plan

These kinds of laws should be in every state in our country.  Medical providers should not bow to special interest groups.  Sharing more, not less, following an adverse event is the only way to truly minimize future medical errors. 

Encourage your legislators to work hard to implement strong laws that clearly work to open communication and spur better, safer health practices.

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 Posted by: Salvatore J. Zambri, founding partner     

The American Association for Justice has published a primer on the medical malpractice debate.  It comprehensively shows how special interest groups have perpetuated myths in an effort to strip Americans of their rights in order to pad their profits.  Here are some of the findings:

• Myth #1: There are too many “frivolous” malpractice lawsuits
  

• Myth #2: Malpractice claims drive up health care costs.

• Myth #3: Doctors are fleeing.

• Myth #4: Malpractice claims drive up doctors’ premiums.

• Myth #5: Tort reform will lower insurance rates.

It is widely accepted that approximately 98,000 Americans die every year as a result of medical errors.  That's like two 747 airplanes full of passengers crashing to the ground every day for a year.  Yet, some legislators want to strip innocent victims of their constitutional rights, including limiting their recoveries, instead of focusing on preventing future errors. 

Our leaders should be fighting for safer drugs, safer hospitals, better medical practices, and a safer American health system.  We must put people over profits.

To read the publication, please click here.

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Post by Catherine D. Bertram, Partner                                       

Part of the debate about health care reform includes the major insurance companies' efforts to put artificial caps on the damages awarded to the most severely injured citizens who have valid claims for medical negligence.   

However, the nonpartisan Congressional Budget Office estimated last year that savings achieved by limiting medical liability would amount to less than 0.5 percent of health care spending. In addition, the office studied states with their own controls on medical lawsuits. It found no proof that those limits have reduced ''defensive medicine'' -- expensive and unnecessary tests and procedures ordered by a doctor only to reduce the risk of a lawsuit.

For information about your legal rights, please email Catherine Bertram at cbertram@reganfirm.com or call Ms. Bertram directly at 202-833-1875.

 Posted by: Salvatore J. Zambri, founding partner     

The American Association for Justice has published a paper that concisely and clearly debunked the myths about medical malpractice which has been spread by business interest groups aimed at putting profits over people.  In the first of a series of papers, Public Citizen debunks the following "five myths: 

• Myth #1: There are too many “frivolous” malpractice lawsuits.

Fact: There’s an epidemic of medical negligence, not lawsuits.  Only one in eight people injured by medical negligence ever file suit.  Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket.  A 2006 Harvard study found that 97 percent of claims were meritorious, stating, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

• Myth #2: Malpractice claims drive up health care costs.

Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

• Myth #3: Doctors are fleeing.

Fact: Then where are they going?  According to the American Medical Association’s own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth.  Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

• Myth #4: Malpractice claims drive up doctors’ premiums.

Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies’ financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors’ premiums and misled the public about the nature of medical negligence claims.  A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

• Myth #5: Tort reform will lower insurance rates.

Fact:  Tort reforms are passed under the guise that they will lower physicians’ liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates."

It is widely accepted that approximately 98,000 Americans die every year as a result of medical errors.  That's like two 747 airplanes full of passengers crashing to the ground every day for a year.  Yet, some legislators want to strip innocent victims of their constitutional rights, including limitibg their recoveries, instead of focusing on preventing future errors. 

Don't let your legislative representatives takes your rights away just so some special interest groups can pad their profits.  Fight for safer hospitals, better medical practices, and a safer American health system.  We must put people over profits.

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By Catherine D. Bertram, Esquire

98,000 Reasons is a website set up to get the word out on how medical errors harm real patients every day and what we can do about it.   According to decade old data published by the National Institute of Medicine, there are  documented preventable medical errors which lead to 98,0000 deaths in U.S. hospitals each year.   That figure does not include patients who are seriously harmed.  Now think about the fact that this number has remained static over 10 years.    Tragically, it is the 6th leading cause of death in our country.  To put that into perspective, 98,000 annual deaths is equivalent to 2 jumbo jets crashing every day all year.  Why doesn't Congress demand answers?  Why are hospitals not held accountable?  How can we allow this to continue?  Those are the questions that we need answers to.   We use our tax dollars to have hearings about baseball and steroid use.

As a former Director of Risk Management at a major teaching hospital in DC, I am saddened that more has not been accomplished on a national level to reduce this number and make hospitals safer for all patients and for our health care providers.  Our goal must be zero.

Please take a minute and click here and follow the link to let Congress know how important an issue this is to your family and our country.

 About the author:

Catherine Bertram is board certified in civil trials.  Ms. Bertram has 20 years of trial experience and is unique in that she was formerly the Director of Risk Management for Georgetown University Hospital so she brings a wealth of knowledge to her practice including how hospitals should be run and what doctors and nurses can do to protect patients.   She is a partner with the firm and devotes her practice to the representation of patients and families of loved ones who have been injured or lost due to medical errors.  Ms. Bertram lectures regularly to lawyers and health care providers, nationally and locally,  regarding patient safety, medical negligence and other related issues. She can be reached by email at cbertram@reganfirm.com or by phone 202-822-1875. 

Posted by: Salvatore J. Zambri, Esquire

According to a Bloomberg report, a former GlaxoSmithKline executive testified under oath that the drug company knew as early as 2001 that its anti-depressant drug--Paxil--could cause birth defects in the fetuses of pregnant women.  It has been alleged that this information was withheld from the public so the company could maximize profits at teh expense of public health.  The reports notes that in a videotaped deposition, former Glaxo drug-safety executive Jane Nieman stated that the company was “almost certain” by 2001 that Paxil was to blame for a certain heart defect that caused women to abort their fetuses. 

The drug generated about $942 million in sales last year alone.   We have no problem with companies making money--that's America.  What's un-American is putting profits over people.  No company should ever risk public health in a greedy effort to pad profits.  Many lawsuits against the drug manufacturer are pending, and we expect that the truth will be revealed and that the victims' suits will help protect all Americans from corporate greed. 

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Posted by: Salvatore J. Zambri, Esquire

According to the AP (9/18), the Obama Administration "announced $25 million in grants for states and health care systems to experiment with alternatives to costly medical malpractice lawsuits." The report states that the grants will amount to "up to $3 million each for three years," and can be allocated for "a range of ideas, including programs in which doctors and hospitals quickly acknowledge a mistake, offer an apology and restitution, and pledge to take corrective action."        

NPR (9/17, James), on its  "Two-Way" blog, reports that although "a lot of people believe . . . [that] medical malpractice is a major contributor to healthcare inflation. . . the available evidence is with the president"--that it has little impact on healthcare costs.  NPR noted what others, including the Congressional Budget Office (under the direction of former President George W. Bush), have determined, which is that "perhaps one percent or less of healthcare's high costs has been attributed in many studies to malpractice lawsuits."

I think it is good that the American people are starting to learn the truth about medical malpractice litigation and victims' rights to obtain justice.  For far too long, special interest groups, like the insurance and medical industries, have spread myths about "frivolous" lawsuits and the impact malpractice claims have on overall healthcare costs.  These special interest groups have relied on rhetoric and anecdotes in an effort to fool the American people into giving up their rights--specifically their right to obtain justice through a civil justice systemaccess to justice.  There is no place for scare-tactics and myth-dissemination in American politics.  Hopefully, the present discourse about medical malpractice litigation will reveal the truth so that Americans can see that certain industries are willing to put profits over people at almost any cost. 

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Posted by: Salvatore J. Zambri, Esquire

In a segment on CNN's "Anderson Cooper 360" (9/15), the immediate past-president of the American Association of Justice, Les Weisbrod, and another past-president, Todd Smith, addressed the notion of placing artificial caps on medical malpractice claims.  Weisbrod declared such a cap to be unconstitutional and made the well-known point that there is no evidence to show that such a cap would lower health-care spending.  Smith countered the notion that frivolous cases are brought by trial attorneys by stating the obvious--that lawyers have no logical reason whatsoever to take a case with no chance of winning.

Medical malpractice cases are extraordinarily expenses to litigate.  As a medical malpractice lawyer, I routinely advance hundreds of thousands of dollars on my clients' behalf, knowing that if the case fails, I lose all of that money since I never allow my clients to pay me back my advanced expenses in the absence of a favorable resolution.  To bring a frivolous suit would not only lead to financial ruin, but it exposes a lawyer to serious sanctions that can be imposed by the presiding judge and the Office of Bar Counsel that oversees attorney conduct.  Simply put, the idea that doctors face a barrage of frivolous suits is a myth.

Those with special interests need to recognize that too many Americans are killed or severely and permanently injured as a result of medical errors every year.  We need to focus on reducing medical mistakes.  The rights of victims of wrongdoing, often the most vulnerable in our nation, should never be stripped or capped.

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Posted by: Salvatore J. Zambri, Esquire

The highest court in the state of Georgia will determine whether a 2005 law that capped medical malpractice awards violates the state's constitution.

The Atlanta Journal-Constitution (9/16, Rankin) reports that a 75-year-old Marietta, Georgia, woman was "permanently disfigured" after complications from facial surgery.  The report also notes that the woman's "case is now before the Georgia Supreme Court, which on Tuesday considered for the first time the constitutionality of the centerpiece of the state's sweeping 2005 tort reform law - caps on jury awards in medical malpractice cases." The article indicates that the surgeon's attorneys argued that the "Legislature properly imposed the caps to keep doctors from leaving the state in droves because their malpractice insurance premiums were too high," while the attorney for the plaintiff argued that "the law punishes those who suffer the greatest malpractice injuries to the benefit of those who caused the most harm."

The AP (9/15, Walker) reports that Georgia state law caps damages in medical malpractice lawsuits at $350,000, and that the case centers on a Georgia tort "reform" law that arbitrarily caps the amount a jury can award for malpractice victims' pain and suffering.  According to this report, the plaintiff's attorneys "said the law overturns a jury's centuries-old right to determine how much to compensate a victim."

The Atlanta Business Chronicle (9/16, Williams) adds that the woman's lawyer told the court that "The liability cap was a key provision in a tort reform bill Republicans made their top priority after taking full control of the legislature in the 2004 elections for the first time since the 19th century. Lawmakers in Georgia and other states have embraced restrictions on jury awards as a way to curb rising medical malpractice insurance premiums that have long been a chief source of complaint among doctors. Despite the cap, a Fulton County jury awarded $1,265,000 to Betty Nestlehutt, 71, in 2007 after she was left with permanent scars and discoloration from a facelift that went wrong."

The truth of the matter is that there is a medical malpractice crisis in this country.  The myths are that there are too many cases and that lawsuits are the cause of high insurance premiums doctors must pay.  Nearly 100,000 people die every year as a result of medical errors, and 90% of the victims of medical errors never bring a suit.  We need better medical care.  Also, the number of suits throughout  the country have gone done, as have payouts by insurers, yet the insures have been raising premiums.  We need better insurance regulation.

The District of Columbia government has enacted insurance reform recently, and its impact has been already felt.  We hope other states follow the District's lead.

Those that are catastrophically injured due to medical wrongdoing need help.  They should not be victims twice--once by egregious medical care and again by artificial caps that prohibit victims from obtaining justice.

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Posted by: Salvatore J. Zambri, Esquire

President Obama's approach to medical malpractice laws is seen as "differing fundamentally" from idea of limiting awards, according to The Washington Post (9/11, Goldstein).  "When President Obama broached medical malpractice laws in his speech to a joint session of Congress on Wednesday night, it was one of the few times that Republican lawmakers stood to applaud. But the ideas the president embraced stopped considerably short of the federal limits on awards in malpractice lawsuits that the GOP and the nation's physicians have sought for years." The examples "the White House gave of state experiments are among a constellation of ideas that have been advocated by the Institute of Medicine, some members of Congress and a growing number of states to reduce the number of malpractice cases that reach the courts. These ideas differ fundamentally from the main way that Republicans want to revise the malpractice system: creating federal caps on the amount of money that juries and judges can award patients who win lawsuits." The Congressional Budget Office and the Government Accountability Office "have examined whether medical malpractice issues add to health-care spending and concluded in recent years that the link is tenuous."

We believe that the rights of Americans to equal justice, including the right to have access to the court system, should not be stifled by politicians who are tied to interests groups that put profits over people.  Those that have been injured due to the carelessness of others and no wrongdoing of their own need our help the most. 

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Posted by: Salvatore J. Zambri, Esquire

Doctors fail to report clinically significant findings to their patients in more than seven percent (7%) of the cases, according to the Associated Press, relying on a new study published Monday in the Archives of Internal Medicine.  Physicians' use of electronic medical records tended to lower instances of failures to inform.  The frequency of errors is higher in practices that used a combination of electronic and paper records, as opposed to practices that relied on only paper or only electronic records, reports Nicholas Bakalar of the New York Times.    

We encourage doctors to utilize the electronic technology now available to better communicate with patients and other physicians regarding a patient's symptoms and conditions.  Reckless record-keeping leads to needless deaths and injuries.  There is a crisis in this country--too many Americans die each year as a result of hospital and doctor errors.  Nearly 100,000 people die every year as a result of hospital mistakes alone.  Safety needs to be a priority as we move forward.

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By Catherine D. Bertram, Esquire and Salvatore J. Zambri, Esquire

In recent years, the insurance companies in New York have claimed that there was a crisis in medical malpractice claims which was essentially putting doctors and hospitals out of business.  Were the claims of the insurance companies true?   The answer, according to the federal government claims data, is a resounding "no". 

According to a comprehensive report  based on the federal data,  written by Roberto LoBianco and Bill Mahoney of the N.Y. Public Interest Research Group and Arthur Levin of the Center for Medical Consumers.  When you review the actual data from paid medical malpractice claims it is clear that New York's malpractice system has been remarkable consistent and stable.  In fact, the New York medical malpractice settlement figures since 2006 show that the payouts in these cases have declined since 2006.  Despite claims that doctors were fleeing from New York, the data actually shows that the number of active physicians increased by 20% from 1995 to 2008, even though the state's population grew a mere 6%.

The National Practitioner Data Bank (NPDB) was created by federal law and is managed by the U.S. Department of Health and Human Services.  All medical malpractice insurers are required to report their payments to this data base.   The NPDB public use data file is the only publicly-available comprehensive malpractice database in the country since it includes payments from all insurers across the country.   While the NPDB is prohibited from publically releasing the names of the individual doctors who have paid out on malpractice claims,  it does release aggregated information about those payments.  

Posted by: Salvatore J. Zambri, Esquire and Catherine Bertram, Esquire

Bloomberg News reports that "Merck & Co. and Schering-Plough Corp. were sued by a Pennsylvania fund for active and retired state employees over claims they misled consumers into paying too much for prescriptions of Zetia [ezetimibe] and Vytorin cholesterol pills."  The Pennsylvania Employees Benefit Trust Fund alleges in a complaint that "the companies have known for years -- and failed to make public -- that Zetia doesn't reduce fatty arterial plaques that can cause heart attacks and strokes."  The reports commenst that two studies last year showed that "the pills may work no better at unclogging arteries than does an older, cheaper medicine called simvastatin." Nevertheless, the companies allegedly withheld the the finding and "used false and deceptive marketing techniques claiming Vytorin was more efficacious than and just as safe as the much cheaper generic," according to the report.

Our firm has experience pursing cases for patients that involve tragic medication errors,  pharmacy mix ups and unsafe medications.  If you think you have been injured by a defective product, we encourage you to read a portion of a book regarding products liability authored by senior partner Salvatore Zambri.

For information about your legal rights, please click here or contact us at Regan Zambri & Long, PLLC at 202-463-3030.

Posted by: Salvatore J. Zambri, Esquire and Catherine Bertram, Esquire

The Subcommittee on Health will hold a hearing tomorrow regarding The Medical Device Safety Act of 2009.   This is an important piece of legislation that should become law.  We encourage our readers to contact their representatives in Congress and urge them to vote in favor of the bill.

The Medical Device Safety Act of 2009 is important for two principal reasons.  First, it will allow every American patient to hold manufacturers of defective medical devices accountable for injuries and deaths caused by unsafe products.  It will also prevent the manufacturers of defective devices from receiving total immunity from any claims simply because the devices were previously approved by the Food and Drug Administration (FDA). 

On March 19, 2009, the editors of the New England Journal of Medicine endorsed the Medical Device Safety Act. They stated:

"Patients and physicians deserve to be fully informed about the benefits and risks of medical devices, and the companies making the devices should be held accountable if they fail to achieve this standard. We urge Congress to swiftly pass this legislation and to allow lawsuits by injured patients, which have been an important part of the regulatory framework and very effective in keeping medical devices safe, to proceed in the courts."

The New York Times has also endorsed the bill.

Medical devices can be extremely dangerous, and the FDA often does a poor job screening defective products from the public.  If your doctor wants to insert a medical device into your body, ask questions to be sure your physician has sufficiently investigated the device's safety and effectiveness.

If you think you have been injured by a defective device, we encourage you to read a portion of a book regarding products liability authored by senior partner Salvatore Zambri.

For information about your legal rights, please click here or contact us at Regan Zambri & Long, PLLC at 202-463-3030.

Posted by: Salvatore J. Zambri, Esquire and Catherine Bertram, Esquire

Doctors are increasingly practicing medicine in DC, Md, and Va.  This fact flatly rejects the myth that physicians are fleeing because of medical liability concerns.  The new figures from the American Medical Association (AMA) show the number of doctors has risen over the last five years and also outpaced the metropolitan area's population growth.

“The AMA’s own figures show that tort reform is clearly unnecessary, and may actually be detrimental to patient safety," states Salvatore J. Zambri, senior partner at Regan Zambri & Long and Past-President of the Trial Lawyers Association of Metropolitan Washington, D.C.  According to a comprehensive study by the American Association for Justice, nationwide, all states saw an increase in doctors; however, the number of physicians per capita (100,000 population) is 13 percent higher in states without caps. In the four states that doctor growth did not outpace population (Georgia, Alaska, Utah and Montana), caps have been passed.  Additionally, a study released in December 2008 from the American College of  Emergency Physicians showed that states with tort reform scored far worse in patient safety.

“Safety improves when patients can hold negligent hospitals or doctors accountable,” said Zambri.  “Tort reform will only help insurance companies that want to hoard more profits while leaving patients less safe.”

Posted by Patrick Regan and Paul Cornoni

Bloomberg News (4/30 Fisk, Feeley) reports, "Just two months after the U.S. Supreme Court decided patients can sue drugmakers over injuries from medicines approved by the government, long-stalled lawsuits against GlaxoSmithKline Plc and Bristol-Myers Squibb Co. are again moving toward trials."

The Supreme Court's decision in Wyeth essentially states that federal regulatory approval (FDA) of a medicine or drug doesn't shield drugmakers from claims that patients were not adequately warned of potential side effects and other harms.  The Wyeth decision has already affected more than 250 lawsuits involving at least ten different drug companies. 

As the article explains: "Glaxo this month settled two cases on claims its antidepressant Paxil can make patients suicidal, after judges set trials citing the Wyeth decision. A Barr Pharmaceuticals hyperactivity-drug case is to be tried in August in federal court in Tallahassee, Florida. And a group of Bristol-Myers lawsuits over the blood-thinner Plavix may now proceed to trial in federal court in Trenton, New Jersey."

Posted by: Salvatore J. Zambri, Esquire and Catherine Bertram, Esquire

The New York Times reported recently that the Food and Drug Administration (FDA) will conduct a rare meeting to discuss its device division, which is responsible for, among other things, evaluating, monitoring, and regulating medical devices.  According to the report, Dr. Donna-Bea Tillman, the agency's director of device evaluation, called an "all-hands" meeting.  This comes in response to a letter from nine scientists who have written President Obama, charging that some in the agency have acted illegally, exposing the public to harmful, even deadly, products.  

In the letter to President Obama, the scientists claimed that the device center inappropriately approved imaging studies designed to detect breast cancer and also allowed hospitals to wash and reuse device that were designed as single-use products, among other things.  Congress instituted an investigation into the charges. In January, the Government Accountability Office released a report that criticized the device center.

To read the entire Times article, please click here.

We hope that the FDA will seriously evaluate its deficiencies and make the changes that are necessary to protect the public from dangerous devices.

For information about defective devices and your legal rights, please click here or contact us at Regan Zambri & Long, PLLC at 202-463-3030.

Today, medical device patients and attorneys from around the country will travel to Washington, DC for a Lobby Day to ask Congress to support HR 1346/S 540, the Medical Device Safety Act (MDSA). American Association for Justice member law firms and their clients will be joining in support of this important action.

www.stopcorporateimmunity.org/

March 31, 2009 marks the beginning date for Congressional hearings for legislation designed to protect consumers. Legal Times recent edition summarizes battles facing patient advocates, including the attorneys at Regan Zambri & Long, who fight for patients and their families who have been injured or lost their lives as a result of unsafe medical devices, medication and other consumer protection issues. Senior Regan Zambri & Long Partner, Patrick Regan was interviewed and quoted in this recent article.

We have reproduced the Legal Times article in its entirety below for our readers:

Plaintiffs Bar Pushes Hill Agenda
Legal Times, page 1
David Ingram
03-30-2009

Trial lawyers are preparing for a fight in Congress over proposals that would open new areas for civil litigation, testing whether they can translate their newfound political capital into legislative victories.

This week, they’ll begin a public relations push starring a kindergartner and a former Major League Baseball umpire who say they were injured by faulty medical devices—a defibrillator and a replacement hip, respectively. They’ll be joined by others from 14 states to lobby for allowing state-level lawsuits against device manufacturers.

The question of whether to roll back federal pre-emption has simmered since last year’s Supreme Court decision in Riegel v. Medtronic, in which the Court ruled that federal law barred state-level claims for defective devices.

The plaintiffs bar is in its best position on Capitol Hill in almost two decades, with allies—whose campaigns they helped pay for—in control of Congress and the White House. Led by their trade group, the American Association for Justice, they have a wish list that begins with expanded opportunities for state litigation and continues with a ban on mandatory arbitration for consumer contracts, changes to when settlements can be sealed, and a new way to exempt early litigation costs from taxes.

The proposals have been overshadowed by the economy and presidential nominations, but few expect that to last. The start of hearings as soon as March 31 signals that lawmakers are starting to shift their attention.

"This is going to be the most active Congress that we’ve seen in a long time," says Linda Lipsen, chief lobbyist and senior vice president for the American Association for Justice. The association’s political arm ranked 14th in giving to 2008 political campaigns with $3.5 million, according to the Center for Responsive Politics. Banks and other businesses made up most of the top of the list.

Lipsen says consumers would be the primary beneficiaries of the proposed legislation and possible changes in agency rule-making. "If you look at what occurred over the last eight years, it really was a return to the notion of caveat emptor—let the buyer beware," she says.

Victor Schwartz, general counsel of the American Tort Reform Association and a partner at Shook Hardy & Bacon, says consumers’ lawyers stand to benefit, too. "For years, all the trial lawyers did was play defense. They stopped bills," he says. "Now, they’re going to pass stuff."

COMING ATTRACTIONS
The House Judiciary Committee had a preview of the coming fight last week, when a subcommittee held a hearing on legislation that would allow active-duty members of the military to sue the federal government for medical malpractice. No such right exists now as a result of the Supreme Court’s interpretation of federal tort law in a 1950 ruling, but supporters of a change have been energized by the case of a Marine who died because his doctor never told him he had been diagnosed with melanoma.

Debate on the bill turned on the potential effects of having more plaintiffs’ lawyers involved in the military’s medical system. "Creating a special right to sue is not what will improve medical benefits," said John Altenburg Jr., a retired Army major general who previously represented the Army before Congress. Now of counsel with Greenberg Traurig’s D.C. office, he spoke against the bill. (The Defense Department has declined to comment on the bill.)

Judiciary Chairman John Conyers (D-Mich.), who will play a key role in the passage of any changes to the legal system, sided with the bill’s supporters, who include the American Association for Justice. "I don’t know what some lawyers have against other lawyers," he told Republicans on the committee. "When you want a lawyer, you want a tough, aggressive lawyer, but when someone else wants a lawyer, it’s ‘Here we go into litigation again.’ "
Lawmakers have not held hearings this year on most of the items on the plaintiffs lawyers’ agenda. But beginning this week, repealing pre-emption of medical device lawsuits is likely to move to the top of the list. Supporters note the momentum they gained March 4 when the Supreme Court, in Wyeth v. Levine, ruled that federal law does not pre-empt state torts against pharmaceutical manufacturers. The ruling, which plaintiffs’ lawyers cheered, created a contrast with last year’s Riegel decision.

"There’s no real reason to draw a distinction between medical devices and the medication that’s approved by the FDA," says Patrick Regan, name partner in Regan Zambri & Long in D.C.

Supporters of pre-emption argue that manufacturers need to be able to rely on one national standard for safety so that they know when they’ve met their obligations under the law.

The proposed ban on mandatory arbitration for consumers has the potential to be a much larger fight. Provisions requiring arbitration are often included in standard service contracts, whether the contracts are for telephone service or for care of a relative in a nursing home. Businesses see them as a more efficient way of resolving disputes, while consumer advocates say most people never realize what they’re committing to.

"There’s unequal footing when a consumer signs one of these agreements. They’re long, they’re in fine print, and they’re complicated, and the consumer has no bargaining power," says Wayne Cohen, managing partner of Cohen & Cohen and past president of the D.C. trial lawyers association.

Two main bills would approach the arbitration issue differently. One sponsored by Rep. Hank Johnson (D-Ga.) would institute a broad ban on mandatory arbitration for contracts involving consumers and employment. Another sponsored by Rep. Linda Sanchez (D-Calif.) would apply the ban only to nursing home contracts—what some business advocates consider the start of a piecemeal approach designed to divide industries.

"The trial lawyers do better when they try to isolate parts of the business community," Schwartz says. "They pick the business community apart in little places."

Lipsen doesn’t deny the strategy. "The more bills you have introduced on a certain topic, the more interest there is," she says. "It encourages potential hearings on the subject."

THE RECESSION STRATEGY
Helping with the trial lawyers association’s lobbying efforts last year were a handful of outside firms, including Patton Boggs, Palmetto Group, and Forscey & Stinson.

Affecting the strategy for all bills about litigation will be the recession, which each side is looking to turn to its advantage.

"In these tough economic times the last thing we need is more lawsuits," says Harold Kim, senior vice president at the Institute for Legal Reform, which is affiliated with the U.S.

Chamber of Commerce. "Our legal system is already the most expensive in the world. The transaction costs are high, and they are extremely inefficient when measured against other dispute resolution alternatives."

Lipsen says families are looking for safe products more than ever. "These are issues that don’t cost the taxpayer anything," she says. "There are some real thorny issues with the economy that are being dealt with, but these issues of fairness and accountability and responsibility, these are issues that aren’t going to bankrupt the country. They’re just going to add fairness back."

David Ingram can be contacted at david.ingram@incisivemedia.com.

For information about your legal rights, please click here or call
the law firm of Regan Zambri & Long, PLLC at 202-463-3030.

A recent two-year survey of Texas judges shows that runaway juries and frivolous lawsuits are mostly fictional events and that tort reform legislation isn't necessary.  To evaluate the nation's need for tort reform,  Baylor Law School researchers surveyed a broad sample of trial judges, whose unique position allows them to view the same evidence as jurors, yet remain non-partisan regarding trial outcomes.  Impartial observation of numerous trials over time also guards against the possibility that a judge would adopt broad generalizations based on individual, isolated verdicts.

The profitability of selling medical malpractice insurance has skyrocketed in recent years.  Consequently, most malpractice insurance companies have routinely "over-reserved" (set aside more profit) than is necessary.  These are among the findings of former Missouri Insurance Commissioner Jay Angoff, who recently analyzed the 2006 financial statements of the 15 largest medical malpractice insurance companies in the U.S., and issued a report entitled, "No Basis for High Insurance Rates:  An Analysis of the 15 Largest Medical Malpractice Insurers' 2006 Financial Statements."

Other blogs and the media have given significant coverage, lately, to a study by Washington University researchers highlighting the emotional turmoil American doctors suffer when they injure a patient through negligence or malpractice.  The research is almost as interesting as the misplaced sympathies it seems to engender in media circles.  The Joint Commission published the report this month in their Journal on Quality and Patient Safety, implying that many safety shortcomings in our health system are systematic, and perhaps not the sole responsibility of the system’s most visible custodians and benefactors.  Policy pundits have echoed those sentiments.  While few would accuse physicians of being disaffected or unconcerned by the injuries they inadvertently inflict on patients, fewer still would argue that they aren’t in a position to effect change, or that their responsibility for the health of patients is applicable only for the duration of seven-minute clinical encounter.

In an Op-Ed in the Montgomery Advertiser newspaper, Alabama Association for Justice President Bob Prince recently explained how the outcome of a $54 million suit against a metro dry cleaning business illustrates the strengths of the nation's legal system -- much to the chagrin of anti-consumer CEOs who peddle "tort reform."  The piece is reprinted below in its entirety.

An important American Association for Justice poll reveals that voters are significantly worried about corporate malfeasance -- especially regarding the pharmaceutical industry -- and aren't likely to rally behind political candidates who advocate tort reform.  Less than a quarter of those polled believed that juries award too much money to victims of personal injury.

For decades, "tort reform" groups have been desperately trying to strip American citizens of their ability and right to access the courts and obtain fair justice.  In pushing their agenda, they have relied on data-starved rhetoric and biased opinions in order to influence the public to serve their special interests.  Thankfully, unbiased consumer advocacy groups have challenged the rhetoric and, through comprehensive studies, have elicited the truth regarding the civil justice system.

Once such advocacy group is the Center for Justice & Democracy. Recently, this organization has conducted a comprehensive study of the civil justice system.  Its findings can be found on its website at http://www.centerjd.org.  Among other things, the study addresses jury verdicts, the costs of the tort system, awards of punitive damages throughout the nation, lawyers' fees, the impact of the justice system on medical malpractice premiums, and other very important issues.  It is clear from the study, that the "tort reformers" have been greatly misleading the American public.

Despite what insurance companies want you to believe, there is no medical malpractice insurance crisis in this country. In fact, studies have proven that medical malpractice lawsuits have decreased throughout the country. So why are the doctors’ insurance premiums so high? Greed.

The American Medical Association recently proposed that all individuals making more than $50,000 per year be required to purchase health insurance. The proposal includes tax penalties for individuals who don't purchase health insurance as well as tax credits and subsidies to assist lower-income individuals in purchasing policies. "The AMA just took a huge step toward supporting universal health care for all Americans," said Dr. Jack Lewin, executive vice president of the California Medical Association, which sponsored the proposal. "Historically, the AMA has supported voluntary approaches, but never a mandate." Although Congress or state legislatures would need to enact laws to mandate health insurance coverage, the AMA's lobbying efforts have been effective in gaining government support for its policy statements in the past.

Estimates from 2004 indicate that about 45 million people in the United States are without health insurance. According to the AMA's suggestion, reforms in the insurance markets should also be made to keep plans affordable.

Health policy experts are also in favor of the individual mandate for health insurance. "It's really amazing how quickly the individual mandate went from an occasional discussion among policy wonks to something advocated by major players, such as the AMA," said Paul Ginsburg, president of the Center for Studying Health System Change, a nonpartisan research group in Washington. "Broader acceptance of this idea may be the key to government's moving more aggressively to expand health insurance coverage."

A recent study by a group of Boston health-policy researchers of almost 1,500 randomly selected malpractice suits in the U.S. concluded that "the problem with medical malpractice litigation is not that too many undeserving people get paid, but rather that not enough deserving people get paid." Full details of the study are reported at Legal Debate: Assumptions on medical malpractice called into question: Science News Online, May 13, 2006 and The New England Journal of Medicine, May 11, 2006.

The Center for Constitutional Litigation, PC (CCL) received two trial-level victories during the first week of February 2006. CCL is engaged in challenging laws that impede access to justice throughout the country. Additional details are available at ATLA's Court News.

First, in Alaska, a trial court denied the Attorney General's motion for reconsideration in Patrick v. State of Alaska, and upheld its earlier decision that the state's $400,000 cap on non-economic damages is unconstitutional. Four years ago, the Alaska Supreme Court, by an equally divided vote, rejected a facial challenge to that statute. This case was an "as applied" challenge involving a Native Alaskan, who had been "tasered" by a state trooper and awarded $1 million in non-economic damages. The trial court invalidated the cap on equal protection grounds last spring, but the Attorney General moved for reconsideration on the basis of new evidence, consisting of some 1300 pages of legislative history and studies purporting to justify the cap. CCL's Ned Miltenberg argued in a brief for the plaintiff that the "new evidence" could not be taken into account on a motion to reconsider, and was repetitive and unpersuasive. He supplemented the record with contrary evidence showing that Alaska had not experienced a litigation, insurance, business, or physician exodus crisis.

The second decision came in a CCL challenge to the application of the new federal vicarious liability law enacted last summer, which generally immunized car rental companies from vicarious liability. CCL attorney Andre Mura successfully argued to a state Circuit Court (trial level) in Brevard County, Florida, that the new law does not apply in Florida because the federal statute contains an exception that preserves liability for failure to meet state financial responsibility laws and that Florida has such a qualifying law. The judge ruled in favor of CCL's argument from the bench and will be issuing an order shortly. The case, Poole v. Enterprise Leasing Company of Orlando, appears to be the first case to test the application of the new federal vicarious liability law. If interpreted broadly, the federal law could preempt the laws of fifteen states and the District of Columbia, which impose some measure of liability on lessors in order to ensure that compensation is available to innocent victims of motor vehicle accidents. CCL expects that constitutional challenges to the federal statute will be mounted in those other states as well.

Corporate America and the Insurance Industry are after More than Just Your Money. They want to take away your rights, knowing they can make even higher profits by keeping honest, hardworking Americans out of the courtroom. Please go to this website to find out how you can fight back and make a difference.

A recent comprehensive study by a leading insurance industry analyst reveals that medical malpractice insurance premiums are not influenced by patient lawsuits. The June 2005 report by Jay Angoff concludes, among other things, that "over the last five years the amount the major medical malpractice insurers have collected in premiums has more than doubled, while their claims payouts have remained essentially flat."

As Angoff's report details, the 15 major medical malpractice insurers increased their premiums by 120% even though their net payouts on claims increased by less than 6%. This amounts to a stunning increase in premiums at a rate 21 times the increase in payouts.

As with all other credible independent studies, this report confirms our belief that insurance companies are falsely raising the spectre of lawsuit abuse to exploit consumers and reap unconscionable profits.

To read the complete study, please click here.

A recent comprehensive report published by a leading independent consumer advocacy group reveals that most states are not living up to their obligations to protect patients from doctors who fail to practice medicine in conformance with accepted industry standards. Public Citizen, a national non-profit public interest organization, collected data from the Federation of State Medical Boards on the number of disciplinary actions taken against doctors in 2002-2004. In an April 2005 report, Public Citizen concluded that the following states have the least effective disciplinary procedures: Hawaii, Delaware, Wisconsin, Minnesota, Maryland, Nevada, Rhode Island, Arkansas, South Carolina, Washington, Tennessee, Mississippi, Michigan, Connecticut, and Florida.

Victims of medical malpractice are taking their opinions of their local doctors to the Internet, and a wider audience, and that has some medical providers on edge. In an effort to prevent patients from voicing their complaints and educating the public concerning poor medical care, many doctors are filing lawsuits in an attempt to limit patients' free speech rights.

A report issued by the U.S. Department of Justice's Bureau of Justice Statistics shows that the number of tort cases resolved in U.S. district courts fell 79 percent between 1985 and 2003. Other key findings include:

-- In 1985, 3,600 tort trials were decided by a judge or jury in U.S. district courts;

-- By 2003, that number had dropped to less than 800;

In an emergency session of the legislature, the Maryland Patients' Access to Quality Health Care Act of 2004 was passed over Governor Ehrlich's veto.

The bill freezes the amount of compensation a jury can award for pain and suffering damages at $650,000 until December 25, 2008 (after which it will increase $15,000 per year) and reduces the cap on damages in death cases from $1.6 million to $812,500. This cap applies only to medical malpractice cases.

The bill also requires doctors who testify in malpractice suits to be familiar with the specialty of the doctor they testify against, encourages settlement of malpractice cases by mediation, and creates a people's counsel to represent citizens before the Maryland Insurance Administration.

To read the unofficial language of the bill, please click here.

One dirty little secret about the so-called "Medical Malpractice Bill" (H.R. 5) pending in the U.S. House of Representatives is that hidden in the bill are unfair product liability protections for the drug industry: sweeping immunities that will make it impossible for people injured or killed by unsafe drugs—like Vioxx—to hold drug manufacturers accountable.

For instance, H.R. 5 protects drug makers by capping damages for any injury, even death, at $250,000. Thus, no matter how serious the injury it causes, and no matter how negligent its misconduct, a drug company like Merck will never have to pay more than $250,000 in compensation for noneconomic loss to patients and families who are injured or killed by defective drugs. The bottom line is that, under H.R. 5, drug companies will keep their profits while injured people are denied justice.

A recently released study of medical malpractice insurance premiums charged by insurance companies supports what we have been saying for several years: payments to innocent malpractice survivors are not responsible for increased malpractice insurance premiums. The study, released in July 2005, suggests that doctors are victims of price-gouging by insurance companies who continue to raise malpractice insurance premiums even as claims decline.

According to the Attorney General of one state: "The data in the Annual Statements filed under oath with state insurance departments, which this Report discloses, call into question much of what the medical malpractice insurance industry has been saying publicly during the past several years." Click here for the full article text.

"The numbers underscore the need for much tougher, more aggressive oversight to prevent and punish profiteering," Connecticut Attorney General Richard Blumenthal said. "Federal and state regulators should thoroughly scrutinize recent rate increases and take appropriate corrective action."