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Maryland’s Horrendous Law Capping Damages
In a recent blog post, I wrote about the ridiculous law in Virginia that limits the amount of money medical malpractice victims may receive for their injuries. (This law caps “damages.”) But I’ll tell you a secret about the damages caps in Virginia: in some ways, they are much fairer than they are in Maryland.
To be clear, they are not fairer in medical malpractice cases. However, in other kinds of personal injury cases–car crash cases, premises liability cases, truck collision cases, elder abuse cases, and so on–the damages caps in Virginia are significantly fairer. In fact, in some ways, the damages caps in Maryland are some of the least fair in the nation.
Could this really be true?
Could it, considering the Maryland legislature is overwhelmingly Democratic? (There are two Democrats for every one Republican in both the Senate and the House of Delegates.)
It is true.
Individuals who have suffered catastrophic injuries might find it unfortunate that they were injured if they were injured because of someone else’s negligence; they may find it especially unfortunate if they were injured in Maryland.
I’ll tell you why.
Maryland caps the amount injured plaintiffs can recover for non-economic damages. Non-economic damages cover losses like the loss of the enjoyment of life, physical pain and suffering, and mental anguish.
Maryland law caps recovery for non-economic damages to only $845,000. (The cap increases by $15,000 every year.)
Imagine: you’re driving a hatchback, you’re stopped in traffic, and suddenly you get hit from behind–obliterated–by a big SUV. You get medical treatment, of course. But after all the treatment you receive, a doctor tells you that you’ll have severe pain for the rest of your life and she recommends you use a wheelchair.
Activities you used to love, like running every morning and playing a round of golf with your friends on weekends, are now off limits to you. You feel like you’re a burden on your family. You’ll likely live another 40 years.
Now, consider someone gives you a check for $845,000 in exchange for the severe pain, the mental anguish, and the loss of your enjoyment of life. That check would, spread over 40 years, equal about $20,000 a year.
Who in their right mind would consider that amount to be fair?
Make no mistake about it: none of Maryland’s neighboring states limit non-economic damages in all personal injury cases–not DC, not Delaware, not Virginia, not New Jersey, not New York, not Pennsylvania. In fact, only 10 other states in the nation have such a cap on non-economic damages: Alaska, Colorado, Hawaii, Idaho, Kansas, Mississippi, Ohio, Oklahoma, Oregon, and Tennessee.
Maryland is an outlier.
The Democratic legislature ought to end the caps on non-economic damages, bringing Maryland in line with the vast majority of states and all of its neighbors.
Serious Injury–Needed for a Successful Birth Injury Case
The only birth injury cases a personal injury lawyer will likely accept are those that have a strong likelihood of success, and all successful birth injury cases must have four elements. One of those elements is damages. (The other three are liability, causation, and insurance coverage.) When it comes to evaluating damages, I ask myself certain questions. Here, let’s look at the main question.
The main question asks whether the plaintiff (usually the child) has suffered a very serious injury. (As a result of the negligence of a doctor or nurse or other healthcare provider, a child, his or her mother, or both of them, may suffer a very serious injury.)
Look: most personal injury law firms will decline far, far more cases than they will accept. They will accept only a small number of cases.
Think about it like this: ultimately, birth injury cases require so much time that a personal injury lawyer cannot reasonably work on many of them at a time, if he plans to investigate and develop them fully and he plans to try them in court. Without serious injuries, the financial recovery, if any, will be so minimal that it will barely cover expenses and not justify the time the client and the lawyer will have to spend on the litigation.
If there is no serious injury, most personal injury lawyers will reject the case.
While it is hard to explain to a person who has been injured due to the negligence of medical personnel that the negligent parties may not have to pay a dime in compensation, it is much easier to do that before accepting the case than after a year of litigation.
It is unfortunate how many children and mothers are injured at birth due to negligent medical care. If you or your child suffered a serious birth injury due to negligent medical care, you may have questions about legal options. If you have not yet started a lawsuit and are contemplating bringing one, I encourage you to contact me today. I can answer your legal questions and would love to talk with you. You can reach me at 410-513-9978 or by email at stefan.akorli@fintusinjuryfirm.com.
New Research Shows Black Doctors Matter for Black Babies
An article this weekend in The Washington Post brought attention to a new study about race-based differences in US infant mortality. The article, which is worth reading in its entirety, revealed the results of the study.
Through the study, its researchers determined that the rate that black infants die drops dramatically–over 50%–when the infant was delivered by a black doctor.
When black doctors delivered them, the infant mortality rate fell from 430 deaths per 100,000 live births to 173 death per 100,000.
In a previous blog post, I mentioned the large disparity between black infant mortality rate and that of white infants. One of the researchers of the study highlighted by The Washington Post gave an opinion on the cause of this disparity: the root of the problem is structural racism, she said. She went on to define structural racism as the “normalization and legitimization of an array of dynamics–historical, cultural, institutional and interpersonal–that routinely advantage Whites while producing cumulative and chronic adverse outcomes for people of color.”
As to why black doctors seem to outperform their white counterparts, the researchers wrote that more research is needed to understand.
Causation–Needed for a Successful Birth Injury Case
Negligent conduct is not enough to ensure a successful birth injury case. A doctor, a nurse, or a hospital may commit an awful, avoidable, and obvious error, but that alone is not enough. There must also be, among other things, “causation.”
With this in mind, a Maryland attorney might ask himself the following question: Can I prove that the defendant’s negligence was a substantial factor, rather than a remote factor, in causing the injury or harm?
Even when negligence can be shown, if it was not a substantial factor in bringing about the injury, there is not a strong case. For example, parents may tragically lose their newborn. They may think that their loss was caused by the hospital’s negligence. They may point to the hospital’s error of failing to comply with its own policy that required a neonatologist at all c-section births. However, if there is no showing that the newborn died as a result of the neonatologist’s absence, the case will not be successful. The hospital’s lawyers will certainly argue that the absence of the neonatologist was not a substantial factor in the newborn’s death.
If you or your child suffered a birth injury due to negligent medical care, you may have questions about legal options. If you have not yet started a lawsuit and are contemplating bringing one, I encourage you to contact me today. I can answer your legal questions and would love to talk with you. You can reach me at 410-513-9978 or by email at stefan.akorli@fintusinjuryfirm.com.
Why Birth Injuries Are a Special Risk for So Many in the US
As Americans, we like to think of ourselves as belonging to the greatest country in the world. However, the dispiriting truth is that when it comes to many facets of life, we’re just a middling, average, not-so-special group. The pandemic has laid this bare. While the world’s most populous nation, China, has successfully escaped the grips of the COVID-19 pandemic, we’re still losing thousands of parents, siblings, grandparents, and cousins every day.
Should it be surprising that America is not exceptional when it comes to dealing with the pandemic, a health crisis? Absolutely not.
Just look at birth injury statistics.
When it comes to maternal death rates among developed nations, the United States is worst. To put it plainly, the United States is the most dangerous place in the developed world to give birth. About 700 mothers die, and more than 50,000 mothers suffer severe injuries during childbirth each year. Significantly, according to a USA Today investigation, a least half of these deaths could have been prevented and half of the injuries reduced or prevented with better care. What’s more, the maternal death and injury rate in the US has continued to climb; the maternal death and injury rate in the world’s other developed nations, they’ve been decreasing.
When it comes to birth injuries suffered by infants, the statistics also present a gloomy picture for the United States. Look at the statistic for injuries suffered per thousand births. In the United States, there are 47.8 injuries to infants for each 1,000 births. In France there are 39.7. In Austria, 41.6. In Australia, 41.7. In Italy, 43.2. In Spain, 43.4. In Finland, 43.8. In the UK, 43.8. In Germany, 43.8.
What can be done?
We can and should hold doctors accountable for the errors they make. All too often individuals who are injured by doctors never seek the help of a medical malpractice attorney. Suing a doctor for his or her negligence is not about putting the doctor out of business; it’s about putting justice and good healthcare practices into business.
The Purpose of a Med Mal Lawsuit–To Put Justice in Business
The most basic purpose of any personal injury lawsuit is to make the injured man, woman, or child “whole.” Stated simply, the law tries to put the injured person as nearly as possible in the same position as he or she would be in if the medical malpractice had not happened. In medical malpractice cases, the primary way this happens is through payment of money.
Through money, a plaintiff may be compensated for a variety of things he or she has lost or will lose. A plaintiff may be compensated for concrete things, like future medical expenses, and intangible things, like the loss of the ability to enjoy life.
But compensation is not all. Lawsuits have another great benefit–a societal benefit. When you sue a hospital, or a doctor, you do your part in helping improve the quality of local healthcare. This will benefit our community. After all, nearly all of us can envision needing medical care in the future, and we’d like to receive non-negligent medical care. For the sake of illustration, let’s look at the story of Libby Zion.
Dr. Paul Ruggieri, in his book Confessions of a Surgeon, notes the impact that a lawsuit filed by the family of Ms. Zion had:
Times have changed for [medical] residents. It all changed because of the unexpected death of a patient in a New York city hospital in 1984. Libby Zion walked into an emergency room, ill and looking for care. She left in a body bag. Her father was a high-profile citizen of the city and would not accept the initial explanations of her death as fact. At his legal and political urging, state authorities investigated the details of Libby’s care (helped along by his vigorous lawsuit). In the end, the legal case and investigation uncovered what most residents already knew and lived.
Libby Zion’s death exposed the exhaustive pressures and lack of supervision that were the norm in many training programs, both of which increased the potential for serious mistakes, and led to reforms including the number of hours residents could work continuously without sleep. Libby’s death ultimately closed the door on residencies rooted in the old way of thinking ….
For your community, a medical malpractice lawsuit you file can have a profound effect.
If you have suffered an injury due to the negligence of a medical professional in Maryland, you may have questions about your legal options. If you have not yet started a lawsuit and are contemplating bringing one, I encourage you to contact me today. I can answer your legal questions and would love to talk with you. You can reach me at 410-513-9978 or by email at stefan.akorli@fintusinjuryfirm.com.
Coverage–Needed for a Successful Birth Injury Case
The only birth injury cases a personal injury lawyer will probably accept are those that have a strong likelihood of success, and all successful birth injury cases must have four elements. One of those elements is coverage. At least one question a Maryland personal injury lawyer will ask himself related to “coverage” is whether the plaintiff will be able to collect a good-sized judgment (money damages awarded to the plaintiff) if the plaintiff prevails at trial?
This question is significant, because if a plaintiff wins against a defendant who is bankrupt and who does not have medical malpractice insurance, then there will be no financial recovery.
Does this mean the victory would be meaningless? No, not exactly. Some legal victories can be cathartic or liberating for the plaintiff and the plaintiff’s family. However, it does mean that the case, which would have required a lot of money, time, and effort, will result in financial losses for the personal injury attorney, the plaintiff’s attorney.
Thus, it’s important that a Maryland personal injury attorney determine whether or not the defendant or defendants have adequate insurance.
Typically, doctors purchase medical malpractice insurance from big insurance companies, and then those insurance companies handle the medical malpractice cases as they arise. When there is a settlement of a case or a damages award that must be paid, it is generally the insurance company that pays.
However, Maryland does not require that all doctors have medical malpractice insurance. Unsurprisingly, some doctors make the choice to go without insurance. Further, even doctors who are not uninsured may be underinsured. In the cases where the doctor has no insurance coverage or insufficient insurance coverage, the personal assets of the doctor may come into play. It is in these cases that the doctor might, theoretically, have to pay the damages award or settlement out of her pocket. However, in practice, it is typically difficult to collect from the doctor when the award must be paid out of her pocket. Why? Doctors are adept at shielding their wealth, making it hard for victims of medical malpractice, including those who have suffered birth injuries, to receive the compensation they deserve.
Ultimately, without a satisfactory answer to the coverage question, a victim of medical malpractice who has suffered a birth injury may find it difficult to find a personal injury attorney who will accept the case.
It is unfortunate how many children and mothers are injured at birth due to negligent medical care. If you or your child suffered a birth injury due to negligent medical care, you may have questions about legal options. If you have not yet started a lawsuit and are contemplating bringing one, I encourage you to contact me today. I can answer your legal questions and would love to talk with you. You can reach me at 410-513-9978 or by email at stefan.akorli@fintusinjuryfirm.com.
Black College-Educated Parents and the Mortality Rates of Black Infants
In the United States, there is a disturbing disparity between black and white infant mortality rates.[1] In 2016, the likelihood that a black infant would die of causes attributable to perinatal events was more than 230% higher than the likelihood a white infant would.
Unsurprisingly, the disparity between black and white infant mortality rates in the US is not a new phenomenon: in the 19th century, W. E. B. Du Bois studied the racial disparity in infant mortality rates. At that time, the black infant mortality rate was 340 per 1,000 live births, while the white infant mortality rate was 217 per 1,000.
What may be slightly more surprising is that the disparity in mortality rates is present within the demographic of infants born to two college-educated parents. Put plainly, even black infants born to two college-educated parents fare worse than similarly situated white infants.
In a 1992 study, researchers used the National Linked Birth and Infant Death Files for 1983 through 1985 to calculate infant mortality rates for children born to two college-educated parents. The population in the study consisted of 865,128 white infants and 42,230 black infants.
The researchers found that, in this population, the infant mortality rate was 10.2 per 1,000 live births for black infants and 5.4 per 1,000 live births for white infants.
Low birth weight infants drove the disparity: the rate of low birth weight was more than twice as high among blacks (7 percent) as among whites (3 percent). Meanwhile, the researchers found that the mortality rates for black and white infants was equal among those infants who were not low birth weight infants.[2]
The researchers appropriately noted that “[t]he excess rate of low birth weight among black infants and the excess deaths of black infants due to perinatal causes raise concern about the health of black college-educated women and the perinatal care they receive.”
When black women receive substandard healthcare from physicians or other healthcare personnel, it’s a serious problem. When standard medical care does not adequately address the needs of black women, it’s a serious problem. When the psychological toll of being black and a woman in America results in physiological risks, it’s a serious problem.
What can be done to improve things?
One thing we can and should do is to hold our lawmakers–especially when they come from blue states–accountable. For example, there should be a steep political price for behaving as the Governor of Rhode Island has behaved recently.
Governor Gina Raimondo has (1) bashed proposals to expand Medicare to cover everyone, (2) approved health insurance companies’ steep premium increases, during the pandemic, and (3) jumped at the chance to help lobbyists by shielding nursing homes from coronavirus-related lawsuits. In short, she has supported policies that are harmful to the health of black women.
Miraculously, a few days ago, there was speculation that she would receive the nomination to be president-elect Biden’s secretary of Health and Human Services! Ultimately, she did not get the nomination. Those of us who care about the health of black infants and black women may fantasize, dream, hope that it was a healthcare litmus test that doomed Governor Raimondo’s chances.
[1] Infant mortality is the death of an infant before his or her first birthday. The infant mortality rate is the number of infant deaths for every 1,000 live births.
[2] However, the researchers pointed out, “[i]n the general population, on the other hand, black infants with normal birth weights have almost twice the mortality rate of their white counterparts.
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