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What Do Those Signs Mean?

When I saw this picture, I knew I had to start the blog with it. I think I live by this mantra!

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We signed up a new client yesterday, who was hit by a truck while leaving a grocery store parking lot. The grocery store has signs hanging on several of their poles that say, “These premises are under closed circuit camera surveillance for your protection“.

Immediately, our investigator walked into the store to ask about the surveillance video, to help us prove our case. The manager just smiled and then admitted that they really didn’t have any cameras, just the signs. I guess it’s a bit like having a “Beware of Dog” sign… without owning a dog.

The “surveillance signs” seem like a good metaphor to lead into a quick discussion of some legislation being debated in Congress. H.R 1215 has been introduced by Representative Steve King (R-Iowa). It is known as the Protecting Access to Care Act of 2017. For the purposes of this blog, I won’t get into an entire discussion of  the pros and cons of Obamacare or providing health care for the entire country. That would put us into a blog of sleepy time. Instead, I am just going to mention a few highlights of this bill.

The title of the bill relates to health care, but amendments also include (H.R. 382) which indicates the bills intent to “provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system”. That has a special meaning to insurance companies.

Here’s some items this “health care” bill includes: SKIP THE NEXT PARAGRAPH IF YOU DON’T FEEL LIKE DETAILS AND JUMP DOWN ONE PARAGRAPH TO THE REAL BLOG THOUGHT!

(Or just meander through)

A. A federal $250,000 non-economic damage cap on lawsuits to override state laws; B. elimination of naming doctors and drug companies in a single lawsuit that involves a claim relating to a prescription; C. establish a statute of limitations federally that restricts filing a lawsuit after 3 years, even if any state has a longer statute of limitation or even if the person injured did not know that they were hurt from something; a restriction of a percentage that a lawyer can charge for representing someone (although, there is no restriction on what can be charged by lawyers to defend the claims), D. and an elimination of joint liability for economic and non-economic damages in the same claim.

NOW HERE IS THE KICKER TO THIS BILL FOR OUR BLOG DISCUSSION!

This bill would require PLAINTIFF experts in any malpractice case to meet the following requirements: First, an expert would have to sign an affidavit 90 days prior to filing suit to outline the areas of malpractice by the defendant. Second, the expert must be in the same field of expertise as the defendant. And Third…. and the real amazing item to me: Any expert must be from the same state as the doctor who committed malpractice, or else must be in a contiguous state to the state where the malpractice has been supposedly committed.

Why am I focusing on the Third item, out of all the things I have mentioned? For instance, under this bill, a doctor at Duke, who might even be chairman of the department, cannot testify as an expert in a case in Pennsylvania.

Why do they do this? To restrict the ability to prove malpractice. If an insurance company can restrict experts that can be hired and restrict what lawyers can be paid, then they can restrict malpractice claims. They want to make it hard to hire an expert. And, they know how hard it is to get a doctor to testify against another doctor that they know, in the same state.

SOMEHOW, THIS GOES UNDER THE HEADING OF PROVIDING GOOD HEALTH CARE WITHOUT FEAR.

That’s why I say that those signs hanging in the parking lot are a good metaphor for such legislation.  I just wanted to give you something to think about. No wonder people want to drain the swamp!

And finally; yes I admit it, I do enjoy cake which causes me to post cake pictures:

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A Walk and Two Pictures

I got up on Saturday morning and poured a cup of coffee (or three). Then, I was reading and checking emails. A morning of routine. Soon I went for an early morning walk. The morning breeze felt amazing.

I was walking close to the edge of the road and walking toward traffic. All of a sudden, I noticed a car  that was traveling directly toward me… directly at me. As he got closer, I hopped off the road and well into the grass. As it came up on me, I could see inside the car. The driver was a young man wearing a work shirt with a name tag. He wasn’t looking at me. Probably headed for work; probably running late.

Fortunately I was able to get out of the way. But it was a reminder of how life can change in an instant. Life is about moments.

During a recent NBA championship game, the announcer was discussing that Golden State’s coach, Steve Kerr, was fortunately back on the sideline coaching. He has been dealing with health issues related to his back. The announcer added, “If you don’t have health, you don’t have anything”.

In my years of representing clients, I have noticed that usually their injuries occur while they are just doing the routine of life. And then, in that instant, many have their lives changed.

The importance of life’s moments. “It is not a case of finding the meaning for the moments, but giving the moments meaning”. (Steven Readhead, Life is Simply a Game).

And here is some lion humor just because!

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And for our pic o’ day, this just makes me laugh!

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A Name With a Face

I stumbled on an article in Salon.com that tells the story of a man known as Context 958. I realize that his name sounds totally impersonal. It’s true, until you learn that his name is a reason to make it personal.

Context 958 lived in the 1200’s, which doesn’t even seem real when I type that, because it’s so long ago. Should we call him Context or Mr. 958?

Based on Scientific clues, an educated guess is that he was part of the poor, working class. Scientists tells us that he had periods of malnutrition. He broke a rib at one point, and survived a concussion. He suffered from gout and a mouthful of dental diseases. He died in a charity hospital and was ultimately buried face down in a pauper’s grave and forgotten. Until…

Sometime between 2010 and 2012, a team of researchers was excavating an area in Cambridge, England, and found his bones. It told the story of his physical condition.

The reality is that I wasn’t interested in the story. I even stopped reading, until I glanced down in the article. There, I saw these pictures:

 

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Scientists from the University of Cambridge had put together a 3D imaging of Context 958, based on clues from his bones. They had put a face with a name.

Now I was interested in their findings. I kept looking back at the pictures. I couldn’t help myself. I imagined all the details that the Scientists described. Why? Because Context 958 was now a person from the forensic investigation.

Lobbyists and politicians learned a long time ago that persuasion must include making it personal. Every year, when our president gives the state of the union address, they place specific people in the audience to recognize them in story, and then make a point with that story.

During the NCAA Basketball tournament, each team has a mascot. It’s marketing for their schools. And in the Finals tonight, we will see the North Carolina Tar Heel mascot named Rameses. Meanwhile, Gonzaga’s mascot is Spike the Bulldog. And if you order some Little Caesar’s Pizza during the game, you might even think of the little toga-wearing character who would remind us of “Pizza! Pizza!”.

Communication specialists call it the art of personalized persuasion. People tune out when they are not connected.

In the world of jury trials, the same principle is in effect. If the case is about medical bills and medical terms… not so good. Getting involved with the reality of the injury is the means of persuasion.

One final note on that. Long ago, I was introduced to the concept of “Day in the Life” videos. On serious injury cases, have the client’s day shown to the jury. To show the difficulties clients face including just getting ready or just living day-to-day because of injury.  It is much more persuasive than just having someone describe difficulties.

“The mind is no match with the heart, in persuasion; constitutionality is no match with compassion”. Everett Dirksen.

Dirksen was a U.S. Senator who knew a great deal about persuasion. He was known as the Senator who break up deadlocked debate on some serious topic, by regularly introducing an amendment or legislation to name the Marigold the National Flower. It never passed, but it always lightened a tense atmosphere. Perhaps he would have been more successful if it had been the White Lily!

And for pic o’ day, here’s some “funnies” about love:IMG_1031

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Disappointment and Happiness

I am going to confess something to you. It’s a mistake that I made when I was in law school, that taught me a valuable lesson.

Even though I was a third-year law student, Oklahoma had a program that allowed law students to be tested and sworn in for a limited license to practice law in Oklahoma. The law firm where I worked in Edmond, Oklahoma, took full advantage of that limited license.

They would send me all over Oklahoma to handle legal matters. At the time, they were paying me $10 per hour and billing me out at a much higher rate.  It was good profit for them and good experience for me.

On this “valuable lesson” occasion, they had sent me to a small courthouse. I am not sure that I could ever find that courthouse again. Way out “in the sticks”. I was there representing a lady for her uncontested divorce.

She and I presented basic evidence to the judge. At the conclusion of the evidence, the judge formally announced from the bench that the lady (my client) was now divorced.

I turned to her and congratulated her. She broke down crying and told me that there was nothing to celebrate. I was reminded that no one wins in a divorce… and that there are specific times to just keep my mouth shut. And that was one of those times!

Thankfully, I only handle personal injury cases. That was part of the lesson learned as well.

So today, I am posting pic o’ days as the range of emotions that can be part of a lawsuit. The courtroom is a place to resolve things when settlement is not an option. But, at the end, there is a scoreboard and a definite winner.

 

So, the first emotion I post is disappointment, which makes us appreciate good results:

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Thankfully, there is also a possibility of happiness. And the more preparation, hopefully the emotion of satisfactory resolution and happiness!

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Nap Versus Exercise Thoughts

For my Friday blog, I thought that I would write just a bit on expert witnesses. Just that first sentence alone could cause you to move on to something more interesting. Right? I knew that I needed to post a picture that I found on Facebook, to get us started:

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That made me laugh when I read this doctor’s opinion on exercise. I think that this is a reminder that you probably can find a doctor who will medically support what you need, if you search enough. I suspect that a majority of doctors would not recommend a nap over exercise, but if a person doesn’t want exercise, they can rely on this as a reason that exercise is a waste of time.

Are you still with me?

(I probably should post one of my old smiling pic o’s, just to serve as a break in some “law discussion”)

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Here’s more law from Virginia. It’s the expert instruction that is read to a jury that governs how a jury should consider testimony:

In considering the weight to be given to the testimony of an expert witness, you should consider the basis for his opinion and the manner by which he arrived at it and the underlying facts and data upon which he relied.

Because it’s Friday, I won’t go into great detail with examples of doctor testimony that was strangely supportive of the defense in various cases. I have seen some head-shakers

I’ll just mention one fact about a doctor that I regularly would see identified as a defense witness in injury cases where I would file suit. He would be identified by the defense as reviewing records, or he would perform a defense medical exam under the Virginia rules, and then qualify as an expert orthopedic doctor.

He admitted through discovery that as a defense expert witness, he had earned over 1.2 million dollars during a 13-month period. He called it medical/legal fees. It was for his “reviews” and for his deposition and trial testimony.

I found myself on many occasions, having to cross exam him in trial or deposition, after receiving his report that seemed strangely similar and that was adverse to my client on each case.

For me, I was always asking myself whether the jury would think that because he was being paid so much, that it made him more of an expert? Or, would the jury think that his testimony had been bought and paid for as a witness? I sure asked the jury to view his testimony in that way.

In medical testimony as an expert, I would like to think and hope that the old saying, “You get what you pay for” is not part of the litigation process. However, the jury instruction allows a jury to come to that conclusion and disregard the testimony. Generally speaking, when I saw that Facebook picture, I thought that the question of nap versus exercise makes for good application of that jury instruction.

I hope you have a great weekend!

And for pic o’ day, I am posting one that has been in the blog in the past, but I still laugh at the “supervision”!

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A Shark’s Limitations

During a recent UNC/Duke basketball, Michael Jordan was giving a halftime inspirational speech about reaching goals. To express “no limitations”, he blurted out “The ceiling is the roof“. His saying became an immediate internet sensation.

I like the thought against self-imposed limitation.  It reminds me a little bit of Yogi Berra’s thoughts on success in baseball, “90% is mental and the other half is physical“.

That leads me to a story for the blog about a shark experiment. There are many versions of this online.

And finally, our pic o’ is also about limitation. Somehow… I really blogged on theme today. How? Best stop before I start random blogging!

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All in the Hustle!

In NFL football history, it is known as the Immaculate Reception. It was an NFL playoff game in 1972. The Pittsburgh Steelers were faced with a 4th and 10 play, with just 22 seconds to go. They were trailing the Oakland Raiders 7-6. That’s when it happened. The play that NFL Films has chosen as the greatest play of all time. (Now a monument in the NFL Football Hall of Fame)

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Quarterback Terry Bradshaw dropped back and threw to halfback John “Frenchy” Fuqua. To this day, there is controversy as to whether he simply did not catch it and knocked it in the air, or if it was deflected by Raiders safety Jack Tatum. (If Tatum did not touch it, then the rules at that time mandated that no other Steeler could catch the ball, if only off the hands of Steelers player Fuqua. There are no longer such “deflection rules” as noted in the Wikipedia attachment above)

Pittsburgh Steelers fullback, Franco Harris, scooped up the deflected ball just above the ground and ran for a touchdown. Pittsburgh calls it the play that changed a city. The win was the first playoff win by the Pittsburgh Steelers, who had suffered through four decades of football losing. After winning that playoff game, Pittsburgh went on to win four Super Bowls. A moment in time with long-lasting impact.

Later, Steelers Coach Chuck Noll was asked how Franco Harris could have possibly caught the ball. He succinctly said “He was hustling, and good things happen to people who hustle”.

I think Coach Noll’s statement has so many applications to everyday life! It’s why I always hope that people call our law firm right after their crash, instead of waiting. Getting busy and hustling makes a difference, instead of letting the insurance company get a head start on finding the witnesses, taking pictures and securing the evidence.

Sometimes we get hired late in the process and have to rely on the insurance company to provide us with pictures of the cars in the crash. Usually by then, the cars have already been fixed or sent for salvage and we cannot take pictures.

It’s so frustrating when the insurance company only sends pictures of our client’s car, and then tells us, “We don’t have pictures of the other car”. I just shake my head. It makes me want to write back, “Yea, Right! Funny how those pictures were never taken”.(shaking head)

There are two uncredited quotes about hustling, that I really like:

My entire life can be summed up in four words: I hustled. I conquered.

The dream is free. The hustle is sold separately.

Another way that we put it at the firm, “Don’t talk about it, be about it!”

 

And for pic o’ day…. can you tell that I enjoy good “fixins”? I do deserve cake!IMG_0902

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It’s My 2000th Blog!

This is blog number 2000. My very first blog was posted on January 10, 2006 titled Accept Responsibility in Lawsuits. (Here) And it wasn’t very interesting! A journey not a destination.

When I think about it, I can’t believe we are here. With 2000 postings. It has been a smorgasbord of topics.

This 2000th blog is almost like a birthday, without the gifts! (Honestly, this picture below is one we have all seen, but it still cracks me up. Plus, it wouldn’t really be one of my blogs if it didn’t include some randomness. Right?)

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Hopefully it’s not like the old Pennsylvania Dutch saying “Too soon old. Too late shmart“. Instead, hopefully it means my blogging will get better!

First up, since I usually post a pic o’ day, I thought I would post my favorite pic o’ day. I realized that I had lots of favorites, but this one never fails to make me smile:

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Instead of just rambling, I thought I would just post one thought that is really a reminder to me. It comes from the Book of Ruth 2:11-13. Boaz tells Ruth that because of how she has shown kindness to others, that the Lord repay your work, and a full reward be given to you. The cause and effect of being kind to others. Boaz telling Ruth that her kindness was being rewarded.

I just thought I would take this 2000th blog to blog on kindness. I am in a profession where being adversarial is rewarded. Being called a Pit Bull is a compliment. And where being feisty is expected. It’s real easy to think that being kind is setting yourself up, so other lawyers can take advantage of you.

That’s why I like this reminder of the importance of kindness. A combination of quotes that includes Mark Twain and Aesop, says it better than I can. “No act of kindness, no matter how small, is ever wasted. Kindness is the language which the deaf can hear and the blind can see. For beautiful eyes, look for the good in others. For beautiful lips, speak only words of kindness. 

And finally, for pic o’ day, the staff said that I should post a picture of me that was taken while I was typing this 2000th blog. So here it is… and on to many more blogging milestones. Still so many topics for future blogs!

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Tools in the Body

They call it a counting error. The technical term from the Center for Medicare and Medicaid Services is retained foreign bodies or a retained surgical item, and they won’t pay for it because they are listed as Never Events… because they never should have happened. I think you know where this is going.

When a doctor does surgery, they are supposed to do a count of all the sponges and instruments used during surgery, before closing the patient up. Sometimes, they don’t do the appropriate mathematical standard of care and they leave something in the patient.

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Maybe when the pain medication wears off, the patient begins to complain of pain and they discover the foreign body. Other times, it’s days or weeks when the person has gone home. Then, they begin to experience pain “inside” and head to the doctor because they complain of an unusual pain or upset stomach. When the x-ray is performed… there is the foreign body.  The single most left behind item is a sponge.

In an average surgery,  there are between 250-300 surgical tools used for the surgery. In a study done in 2008 and reported in the Annals of Surgery, it is estimated that mistakes in tools and sponge counts occur in 12.5% of surgeries. It’s unclear how many of these end up being left in the patient. This 2014 Washington Post article titled When your surgeon accidentally leaves something inside you, does a good summary of the risks, injuries, pain, infection and ultimate costs of surgery to remove the items. They estimate that removal surgery costs about $64,000.

The medical watchdog group The Joint Commission states that there have been a reported 770 foreign objects left in patients in the last 7 years. Of these, 16 resulted in death. A 2012 report from Johns Hopkins University found that 80,000 of the never events have occurred between the years of 1990 and 2010. Big discrepancy there in that math between those two reports!

This is an example where a doctor is not intentionally doing wrong, but it’s bad medicine because it’s bad math. And yes, these are medical malpractice claims.

After writing that, it causes me want to post a pic o’ day that makes me smile:

 

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Toast and a Dress

In 2000, Justin Timberlake finished a radio interview and left behind two pieces  of French Toast that he had barely touched during the interview. The DJ at the station then put the left-over toast up for bid on eBay.

A bidding war ensued and a fan won the auction and the toast for $1,025. Apparently, being a fan of the singer gave value to the toast. (Story)

The dress in this picture was worn by Marilyn Monroe  in 1962, when she sang the infamous Happy Birthday song to President John F. Kennedy in 1962. (LA Times)

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At the time, the entire event was controversial; That includes the “singing in a whisper” voice as she sang to the President, because there was a “well known secret” of the ongoing affair between Kennedy and Monroe.

The dress was made of silk gauze and covered in thousands of sequins and rhinestones. It’s original cost was $12,000. The gown was so tight that Monroe had to be sown into it before she walked on stage. Three months after her singing appearance, she was found dead in her apartment.

The dress has changed owners over the years. Recently at auction, it sold for 4.81 million dollars. Just a dress, a very tight dress.

In 1995, I was about to begin a jury trial in Rockingham County, North Carolina. When the Judge met with defense counsel and me in his chambers before going out to begin the trial, he asked if we were close to settling the case.

“Not even close”, I said .The judge looked at me and told me about a recent verdict in that county that was only $20,000, for the death of a 22-year old. As he put it, “the people of this county have nothing, and they want to make sure that no one else has anything”.

I unfortunately report that the jury did not return a verdict that I was expecting. The judge told me that he wasn’t surprised. It’s why, despite my many jury trials, I can easily remember when that trial took place.

The German word Schadenfreude is translated literally as harm-joy. It is the pleasure that is derived from the misfortune of others. It is similar to the meaning of gloating, but we have no specific word like this German word. Perhaps its our way of pretending that we don’t have this emotion.

There is an old English expression Roman Holiday. That literally comes from the days of  ancient Rome where people would travel miles to watch the Gladiators fight, with the expectation that a gladiator  would be killed “to make a Roman Holiday“.

This blog isn’t meant to provide an answer. However, the question is, “why do some put such value on objects and things, and not on life and human suffering?”.

When selecting a jury, it is always my hope that I don’t have someone on the jury who does not feel for others who have suffered. Many jury consultants suggest that it’s a bad idea to allow youthful jurors, especially males, to serve on your jury. Many of them have played video games that are based on war games and suffering, and they have detached from feeling human suffering. I hope that’s not totally true.

When I read stories of French Toast and memorabilia celebrity dresses that have sold for such significant dollars, it doesn’t surprise me. It just makes me hope that it will somehow impact our appreciation for the losses that people suffer.

 

And for pic o’ day…

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