MEDICAL MALPRACTICE CASES AND PLASTIC SURGERY

NeuwirthLawBest of, Case Matters, For Lawyers, Medical Malpractice

From the movie Brazil, directed by Terry Gilliam

I think it is probably a good idea to avoid having plastic surgery with a surgeon whose spouse is on the Real Housewives series. Several of these docs are getting pummeled with malpractice lawsuit filings. While the filing of your typical case has no bearing on whether the case will ultimately prevail, I think the opposite is true in medical malpractice. No lawyer would file a med mal case unless there was clear malpractice and a clear path to success. This is because you need a Certificate of Merit in PA and similar letters in other states that essentially reveals that your case has merit in the eyes of a doctor with the same specialty. This sort of substantial proof of merit is not required in many lawsuits. Further, these cases demand a really close evaluation of costs and benefits. We do not take cases that do not have six figure or seven figure potential. A doctor doing something wrong or below the standard of care is simply not enough to make a case.  Even the raft of allegations in the lawsuits against the real housewife spouses who are doctors are often not about the actual performance technique.

Why is that? Well, in reviewing a bunch of medical malpractice cases against Dr. Lenny Hochstein and others in that universe, most of the claims involve a failure to respond to post-surgical complications. What this reveals is what most malpractice lawyers recognize. In a cosmetic surgery case, it is not wise to fight over how the procedure turned out or how your nose looked after the procedure. There is no guarantee of results in these cases and much of the result may be surgically successful, but unappealing to the patient. Rather, cosmetic surgery patients have complications from surgery like all other patients and those must be attended to. So, patients who develop fevers, infection, wound healing problems etc. need urgent medical attention. If you as a doctor fail to have systems set up to provide that attention and too much time passes, your patient may decompensate and things go downhill quickly. So, you could see that if you are a real housewife spouse and a surgeon and a patient has surgical complications, then it would not be too hard to argue that perhaps you were busy with your wife’s spending, shooting scenes, or doing other non-doctoring type things and hence ignored the patient.  That is more of a case than your typical plastic surgery case.

Finally, there is always an element of you asked for it in these elective surgery cases. It is strictly off-limits in court, but you must expect jurors to think that none of this would have happened if you had just been happy with how you were etc. It is unavoidable and frankly an element that has to be investigated and considered in these plastics cases.

 

Would a Trump Conviction Matter to a Trial Lawyer?

NeuwirthLawBest of, Case Matters, For Lawyers, In the News

Originally published April 4, 2023

Apart from the angry politics on both sides of Trump being indicted and going to trial at some point in the future, there is an interesting issue to appears to my lawyer brain.  There has been a lot of bellyaching about why would you bring this case first of all the cases against him? The general sense seems to be that this is the weakest of the cases against Trump and why not start with a stronger one.

One interesting issue is how prior convictions are used in actual trials in Court.  Let’s start with assumption #1, which is that Trump will not ever plead guilty to anything.  I think that is a given. A guilty plea and a jury verdict have the exact same effect so that does not matter too much assuming he is not aquitted.  They both act as convictions. A guilty plea will usually get you a lighter sentence than a jury verdict, at least in Federal Court.

If Trump is convicted of a misdemeanor or felony before another case goes to trial, the fact of the conviction for a crime involving dishonesty could be used in future trials in Georgia or in the federal system to show that he is someone who has already been convicted and to show that he is someone who is willing to put his interests over those of society. Now, that may come as a surprise to nobody on either side. Nevertheless, the evidence of a conviction has the added effect of telling a jury that they too can convict him as a jury elsewhere already did that job once. It makes it a little easier to convict.

There will be a lot of argument over the admissibility in evidence of these convictions because if they form a pattern of behavior they become more likely to be admitted. If a defendant’s pattern of behavior suggests that he or she is more likely to have committed the crime on trial, it is powerful evidence. This rule of evidence, 404(b) in the federal system, is most commonly used in criminal cases, where the prosecutor can show that Jon Bad Guy always leaves a perfumed handkerchief at the scene, or only uses 22 caliber bullets etc. Here, if Trump was seeking to win the election in 2016 and was making efforts to do so by illegally paying off porn stars, how far would it be to say that he would break laws by coercing officials in Georgia to do something illegal in the next election? Not much of a stretch.

The other interesting aspect is that assuming Trump is convicted, his conviction should not result in jail time in New York state.  Just no way.  However, in the federal system, defendants with prior convictions get higher sentences and fines than first time offenders. So, there is this added wrinkle where Trump may not care about this case much, but may be very concerned about the timing of any conviction.  So, as a lawyer, what do you do? I would guess that both convictions would have to be appealed to the US Supreme Court, which will take about 2 years or so.  That would avoid all of the above scenarios as a conviction is not final until all appeals are decided.  That is my guess.  As I have said previously, the law grinds slowly but exceedingly fine.  I am guessing we will see some convictions and fines, but I doubt there will be jail time at any point.

Happy Bastille Day!

NeuwirthLawholiday

 

Nothing celebrates radical democracy in action quite like Broadway schmaltz, so here is the cast of Les Mis @ The 1986 Tony Awards

Summer

NeuwirthLawUncategorized

I always believe that there is a grand conspiracy, intentional or otherwise, to slow things down for the summer. Lawyers and judges vacation, clients are less interested in stressful depositions, and generally, the practice of law slows down for the summer. It has always been this way as long as I can remember. It is a good time to work on more time intensive cases or re-assess how the year has gone and what cases are getting ready for trials and need extra attention.

 

STATE vs. FEDERAL COURT VENUE/JURISDICTION DECISION

NeuwirthLawCourts, For Lawyers

 

“COMBAT TACTICS, MR. RYAN” from The Hunt For Red October starring Sean Connery and Alec Baldwin:

Jones (VO): Torpedo in the water.  High speed screws.  Bearing zero-two-zero.  I estimate range at eight thousand yards.
Mancuso: You’re heading straight into that torpedo.

Ramius: I know.

The torpedo hits the sub, but it does not explode.  Instead, it breaks-up on the hull without a detonation.

Mancuso: I’ll be damned.

Ryan: What happened?

Mancuso: Combat tactics, Mr. Ryan.  By turning into the torpedo, Ramius closed the distance before it could arm itself.

So, intelligent tactical use of all available options is the moral of the story.

As a general rule, Plaintiffs’ lawyers do not want to be in federal court because the consensus is that state court is better for our clients.  Why? Well, federal judges are far more likely to grant summary judgment or take seriously the myriad speculative or scattershot defense arguments why evidence should be inadmissible or generally take the insurance industry’s claims as legitimate, when they are normally hackneyed boilerplate attempts that are routinely dismissed in state courts. Forgive me my prejudice in this.  Nevertheless, there are exceptions to every rule and knowing the playing field is critical.

So, why choose Federal Court? Speed is the hallmark of federal cases. What may take 36 months in Montgomery County takes 9 months. Second, there is tremendous pressure applied to cooperate with opposing counsel and move the case along. So, what might take motion practice for multiple delays in discovery simply does not occur with regularity in Federal Court. Further, if my client’s case is in a jurisdiction that I do not generally like, Delaware County, I will have a more sympathetic jury pool in Federal Court, if I can get there.  Finally, many defense lawyers simply have much larger case loads than I do and the federal venue forces them to pay far greater attention to my case than they would if we were in state court with its slower timelines and more lax enforcement of the rules of civil procedure.

 

BELIEVE ME, YOU DON’T WANT TO HAVE A MEDICAL MALPRACTICE CASE

NeuwirthLawCase Matters, Medical Malpractice

Successful medical malpractice cases are ones where people die following routine surgery or where their cancer spreads and will kill the patient because it was not caught sooner or where people are permanently blinded by accident or where patients simply are so poorly managed in a nursing home that they are dropped repeatedly suffering fractured hips, internal bleeding etc. Like I said, you don’t want to have a case. It means something terrible happened. Usually the best med mal cases begin with a patient’s spouse or survivor calling to tell me what happened to their loved one. If you are too unwell to make the call yourself, you may have a case.

A lot of people call me to see if they have a malpractice case. Most people believe that they were wronged by a doctor or ER or hospital and really want someone to acknowledge that there was a wrong done. Some people are looking for a quick buck, which doesn’t happen in med mal cases. Regardless, the test for medical malpractice cases comes down to this: did someone fall below the minimum standard of care, did that cause harm, and what are your damages. A lot of people feel that they were wronged. Sometimes I agree with them. Sometimes I don’t. Regardless, there is a lot of frustration with the medical system these days.

As many of you know, my wife is a physician. I am sympathetic to both clients as patients and to the docs who treat them. Covid has been really really hard on the medical profession. My wife left clinical practice during this period as did whole waves of doctors whose sole job was working in hospitals, seeing patients, etc. It was simply an exhausting time that never ended. There was never a break, never down time, vacations were not possible, and every patient was either a potential carrier or a potential victim of exposure. And, that was without the absurd anti-vaxxers. The doctors of the world live in fear of falling below the standard of care. That comes across in court in these cases.

As a result, a client better have a really clear violation of the standard of care to make a real case. If not, the physician will always get the benefit of the doubt from the jury.

By way of example, I am currently working on a case involving failure to diagnose cauda equina syndrome, which is a compression of the nerve endings below your spine. A failure to diagnose the compression of these nerves leads inevitably to bladder and bowel incontinence. Surgery is possible to correct the condition within 48 hours of onset, but usually the providers are not paying sufficient attention to this potential and the patient cannot recover. Thankfully, this is a fairly rare, but devastating occurrence. Nevertheless, this is a far cry from the routine calls I get where people claim that they were given the wrong medication or were wrongfully in the hospital for a few days etc.

Judge Aileen Cannon, Justices Alito, Thomas et al.: How are Judges Managed, Disciplined, Controlled in our Legal System?

NeuwirthLawCourts, In the News

One of the fascinating outgrowths of the Trump presidency was the realization that much of what we take for granted as lawyers and citizens was based upon abiding by long-established norms. So, for example, the president would not bash his own civil servants or judges would be policed by their brethren or superiors.  Even judges have bosses.  But, post-Trump, things have plainly changed.  What do I mean? How does this affect us?

Take Judge Cannon for example.  Traditionally, if a judge, even a federal judge with a lifetime appointment, got spanked by her appellate court for legally baseless decisions, she would avoid future interactions with that case or with tail between legs return to a more proper course of conduct. That norm is now gone. So, Judge Cannon will likely continue to act in a really curious manner throughout the Trump case. Traditionally, the Chief Judge of her Court would sit her down and say you should recuse from this case or you are not up to the spotlight or you are making this District look bad.  That plainly did not happen or did not get through to her.  Is there a check on her? Probably not, other than the appellate court looking askance at any decision of hers that is appealed.

If she was newly rewarded with a mar a lago membership, gratis, she would have to report it and probably turn it down. Whether she would is an open question.

The same is not true for Justices Alito and Thomas. There really is no code of ethics for the Supremes and they are abusing the public trust to the extent that there was a norm of conduct. While it makes them look craven and stupid or shameless, it plainly does not change their behavior.

Today, we learned that the hard right wing of the Court was willing to sign on to some sort of silly federalist society hooey that a state court cannot review and overturn the decisions of the state legislature on issues of elections. This novel, to me, independent state legislature theory, was rejected 6-3 with Alito, Gorsuch, and Thomas supporting this nonsense. The recent decisions seem to show that Justice Kavanaugh is beginning to form a little voting bloc with Justice Roberts that can act as a swing decision-maker in certain cases.

Nevertheless, there is no check on the Court embarrassing themselves. The prospect of impeaching judges is really only reserved for criminal activity or bribe taking. The prospect of expanding the Court is not realistic. Basically, the GOP got what they wanted in a severely right wing Court and we all have to live with it for a while. The amusing part of this is that the Court is so far to the right of where the country is that they are just digging a bigger hole for the GOP in future elections.  But, is there anything to be done about it? Not really.  Elections have consequences.

Joey Whispers on Tik Tok

NeuwirthLawAuto Accidents, In the News

If you are not following Joey Whispers on tik tok, you should take a look. It appeals to me because I handle a lot of car accidents. In just about every case I take, liability or negligence is already admitted. It doesn’t make sense to take cases where liability is in question.

Joey Whispers drives a dump truck in South Jersey. He videos his days driving and posts the comically negligent actions of the everyday Jersey drivers. Now, we all know that Jersey drivers are terrible, but it is refreshing to see Joey document the incredibly poor decision-making on offer if you dare to drive in the area.

Left turns from the right lane? Right turns from the left? No blinker? Failure to merge properly or alternate feed in a lane drop. Wandering around the lanes will get you a pac man noise for eating up all the dotted lines.

Basically, Joey is documenting all of our frustrations these days with drivers who do not pay attention. Mostly, it looks to me like a lot of people on their phones. However, there is a serious amount  of ignorance that there is a guy in a huge truck who cannot stop on a dime right behind you.

So, give it a watch. It is good for a laugh and you will start mimicking Joey as you drive around. Provided you are not watching him while driving.

Suing the City? You Fall on the Sidewalk and the Aftermath

NeuwirthLawSlip and Fall, Sue The City

I have a new case where a client called in looking to sue the City of Philadelphia. While I am always happy to fight with the City, most falls on sidewalks are actually primarily the responsibility of the landowner and not the City. So, this new client fell outside a building owned by the Durst organization and just underneath a surveillance camera. Does Durst not ring a bell? One of the scions of the Durst family murdered several of his partners and eventually died in jail. Anyway, I am pretty sure that’s not admissible, but it would be fun deposition testimony.

So, the landowner or the Dursts are responsible for the condition of the sidewalk. The City is secondarily liable, but really only becomes a factor when the landowner does not have insurance. The City is there to backstop injured people in the case of no insurance. In this case, there is a video camera right over the site of the fall and there is a really dangerous block of concrete that probably was a sign stanchion that was not removed during renovation of the space. That block caused the client to crash his bike and fall.

I don’t know whether we will get the video or not, but we are trying. The videos usually help if the client is being truthful with me. Sometimes the videos hurt. Rarely are they insignificant to the case. When I tell an insurer that there is a video, they always want to see it.

So, if you slip and fall, look around at the stores that are there and call me. I will send out my investigator and ask for the videos and then we go from there.

UPDATE: SPOTS AVAILABLE TONIGHTS RACE– MidSummer Night Racing Series on the Main Line

NeuwirthLawLaw Practice Management

UPDATE: Tonight is the Rescheduled June Race in the Midsummer Night Racing Series. Come on out and run, mingle, and have a great time with me. (on my birthday)!

 

Midsummer Night 5K Series

 

Previously:

I am now the newest sponsor of the MidSummer Night Racing Series on the Main Line.  The series is a 5k race every month on a Thursday night.  The first one is this Thursday, June 8, 2023.  The others are July 13, 2023 and August 10, 2023. Come out and run if you like.  I will be running a sponsor booth and giving away bags with my logo on them.  My wife and children and many friends have run the race series over the years. Every year there is one really rainy night, a really hot night, and something in between.

 

Midsummer Night 5K Series

The Midsummer Night 5K Series is on Thursday June 8, 2023 to Thursday August 10, 2023. It includes the following events: 5K- All 3 Races, 5K – June, 5K – July, 5K – August, 5K-Virtual, Kids Race June, Kids Race July, and Kids Race August.