440,000 People Die from Medical Errors in Hospitals Every Year

I’ve been doing this long enough that articles like this one from Consumer Reports don’t surprise me anymore.

The number of deaths from preventable medical errors is astonishing. That’s why we do what we do. Quite frankly, we all want better medical care in this country. One small way to go about it is by holding physicians responsible for their medical malpractice. Hopefully the number of people killed will start to drop.

(Howard Zimmerle is a medical malpractice attorney in Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com). 

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Understanding Illinois’ New Settlement Statute

Illinois recently enacted a new settlement statute, with the goal of alleviating some of the hassles of the personal injury practice. 

We’ve all had cases that have settled but still sat on the shelf for weeks or months due to insurance company delays or lien issues. My partner taught me very early on that a plaintiff’s lawyer’s work isn’t nearly done when the case is settled. 

735 ILCS 5/2-2301 to the rescue*

*to the rescue like someone who calls 911, not someone who actually helps beyond that. It’s a nice statute, but it’s not wearing a cape and flying in to save anyone.

So what does the new statute do?

          1. Defendants must tender a release within 14 days of written confirmation of the settlement.

  • Practice point – after a settlement is agreed to orally, confirm it right away in writing or email. That gets the clock ticking.

          2. A settling defendant must pay all sums due within 30 days after the tender of the executed release.

  • Note that “tender” of the release means personal delivery or delivery with return receipt. In other words, drop it off or send it certified mail.

          3. The plaintiff may protect liens/subrogation interests by agreeing to hold the amount of the claimed liens/subrogation interests in his trust account until the lien/subrogation interest is resolved.

  • Why is this important? In theory, it means that if the plaintiff’s attorney sends the defendant a letter (along with the letter confirming settlement if you’re really on the ball) agreeing to protect those third party interests, there should be no need for anyone else’s name to appear on the check. Likewise, a plaintiff’s attorney can get the ball rolling with the settlement check while continuing to negotiate any liens or subrogation interests.

The scuttlebutt at the moment is that some insurance carriers are refusing to abide by the new statute – especially where Medicare is involved. The statute provides for costs and interest if the defendant does not pay in time. Not sure if that provides enough bite to keep the insurance companies from doing what they normally do, but at least it’s another arrow in the quiver. 

(Howard Zimmerle is a trial lawyer concentrating in personal injury, car accidents, medical malpractice and workers compensation. He practices in Davenport, Rock Island, Moline, Bettendorf, and most of Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Juror Collapses in Med Mal Trial – Defendant Doctor saves her. What happens next?

This is one of the most common war stories you hear in the medical malpractice world – someone in the courtroom collapses during a medical malpractice trial, and the defendant doctor runs in to render aid and save the day.

Everyone claims to know someone this has happened to. It’s the Eddie Murphy in the elevator of lawyer stories.

Here’s one time it actually happened. 

Bottom line is that the District Court allowed everyone involved to compose themselves over the lunch hour, polled the jury, and when the jury said they could still be fair and impartial, refused the Plaintiff’s request for a mistrial. The Court of Appeals reversed.

I tend to agree with the Court of Appeals. The bigger key is that if this happens to you, there are some citations in the opinion with other cases – so remember that if you need a quick brief on the issue.

(Howard Zimmerle is a personal injury and medical malpractice lawyer in Rock Island, Illinois, practicing in Iowa and Illinois. He can be reached at 309-794-1660 or at hzimmerle [at] mjwlaw.com).

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Filed under Iowa Case Law, Juries, Medical Malpractice, Trial Practice

I Relied on TrialPad for Ipad in a Medical Malpractice Trial… Here’s What Happened

For years I’ve used Trial Director for big cases, and simple things like blowups on posterboard for small cases. (Why posterboard? There are never any “technical” glitches, never a difficulty finding an outlet in a 100 year old courtroom, etc with posterboard).

This year I decided to switch it up. I bought an Ipad, and downloaded TrialPad for my trial presentation. It’s a $90 app, which made me swallow hard, but then I remembered the price of Trial Director, and I figured I’d give it a shot.

My plan was to try it out with a smallish dog bite case I was going to try in Iowa. That case settled the week before trial.

“Screw it” I said (or at least thought)… “I’m going to use it for this med mal.”

Of course, I started learning the software well in advance, so I’d have time to fall back to Trial Director if it didn’t work out.

It worked out.

Here’s what TrialPad was able to do:

  • Put exhibits/depositions up on the screen
  • Callout/highlight portions of exhibits
  • Use the laser pointer tool like, well, a laser pointer
  • Hold or freeze on one exhibit while I search for another

I did not use TrialPad for video depositions, although that feature is available. Why not?

  1. Too much potential for something to go wrong. The courtroom had a DVD player wired into the system. Why add another element (the Ipad) that could go wrong?
  2. Hassle of uploading the file. I’d have to take it off of the DVD, put it on the computer, put it on dropbox (assuming I even have that much dropbox storage available), and download it from dropbox onto the Ipad. Pain in the ass.

As usual, there were bells and whistles on TrialPad I don’t even know about, just like with Trial Director. Everything I described is typically all I would do with Trial Director as well.

As it was, I survived five days of a medical malpractice trial using only an Ipad for trial presentation.

PROS of TRIALPAD:

1. Cost

2. Space-saving.

TrialPad saved me a lot of space at counsel table. With Trial Director, I would typically have a laptop, scanner, big book of medical records/trial exhibits, and my notebook/pen. With TrialPad, I have my Ipad, and my notebook/pen.

CONS of TRIALPAD

1. The highlighter and callout functions aren’t as precise as I’d like. If you want to call out or highlight a passage that begins in the middle of the page and goes on to the next sentence, you have to include more unnecessary stuff than you would in Trial Director. The highlight function draws a yellow box, as opposed to working like an actual highlighter. It’s still readable, but not precise.

All in all – I will definitely use TrialPad again!!

I also used a website/app called Prezi for opening and closing. It allows you to create neat, interactive infographics that are usually more interesting and fancy looking than the typical powerpoint. It took a little getting used to, but really made for a nice presentation, and I will definitely use Prezi again.

In speaking with jurors afterwards, they were impressed with our use of technology. My case? Maybe not so much. On to the next one.

(Howard Zimmerle is a personal injury and medical malpractice attorney in Rock Island, Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com). 

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Stephen King Tells You How to Start an Opening Statement

This is what happened.

If you’re the type of person who reads legal blogs and trial advocacy books to learn how to give a good opening statement, you know you have to grab the jury’s attention. None of this “Good morning ladies and gentlemen. What I’m about to tell you is not evidence. It’s like a roadmap that I think will help you blah, blah, blah” crap. Grab the jury. Lead them where you want them to go.

I’ve always been a big proponent of the Keenan/Ball (mostly Ball) opening statement:

Good morning.

A driver is required to stop at stop signs (or whatever).

If the driver does not, and as a result hurts someone, the driver is responsible for the harm.

Now let me tell you the story of what happened in this case.

It’s clear. It’s succinct. It tells the jury what to look for without telling them how to think. It might not be the best start to a novel – but that’s not what we’re trying to do. Or is it?

Consider this article from the Atlantic where Stephen King discusses his favorite opening lines from books.  Say what you will about Stephen King, but he knows writing, he knows what’s popular, and he knows how to grab someone’s attention. His favorite opening line?

This is what happened.

For me, this has always been the quintessential opening line. It’s flat and clean as an affidavit. It establishes just what kind of speaker we’re dealing with: someone willing to say, I will tell you the truth. I’ll tell you the facts. I’ll cut through the bullshit and show you exactly what happened. It suggests that there’s an important story here, too, in a way that says to the reader: and you want to know.

A line like “This is what happened,” doesn’t actually say anything–there’s zero action or context — but it doesn’t matter. It’s a voice, and an invitation, that’s very difficult for me to refuse. It’s like finding a good friend who has valuable information to share. Here’s somebody, it says, who can provide entertainment, an escape, and maybe even a way of looking at the world that will open your eyes.

That’s exactly what we want to do with our opening statments, right? I mean… really exactly.

“This is what happened” is so close to “Now let me tell you the story of what happened in this case” but yet so different. David Ball makes some good points about the use of the word “story” – we’re familiar with stories, we have learned to listen to them since we were little kids, etc. I’ve always bristled a little at it because “stories” aren’t always true. I read stories to my three year old daughter every day – and none of them are true. Stories are what your drunk uncle bores you with – where everything is exaggerated to make himself look more interesting.

I don’t tell stories in opening. I tell the jury what happened.

Of course, there is a story to it. There’s a narrative about how someone broke the rules, did something that put people in danger, hurt someone, the victim struggled and got better (or not) and the victim’s life was changed, etc. There’s a method to telling that story too, but that’s for another day.

(Howard Zimmerle is a trial lawyer from Rock Island, Illinois. He practices personal injury and medical malpractice law in the Quad Cities area, including surrounding areas of Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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So William Shatner is doing ads for a “local” law firm – what does that mean?

A certain firm (I won’t link to them) has been flooding the Iowa airwaves with TV ads featuring William Shatner. We all love Shatner, right? He’s Captain Kirk! He’s Denny Crane! He was on that episode of the Twilight Zone where the Gremlin attacks the plane!

So if this firm could get William Shatner’s support, they must be pretty good, right?

Well, here is William Shatner shilling for some other law firms:

Some firm in Bakersfield California

This one in Virginia

This one in Detroit

You get the idea. There’s a company that cranks these ads out for law firms all over the country. Sometimes they claim to be “local” and say the name of your community when they are in, say, Wisconsin. 

That’s not to say that firms who use these ads are bad lawyers. Or good lawyers. I’m sure some are good, some are bad – all have a good advertising budget.

Just know what’s going on. Do your research when picking a lawyer. 

(Howard Zimmerle is an attorney with Warner & Zimmerle. We have offices in Rock Island Illinois and Davenport Iowa. We don’t claim to have other offices. William Shatner has never said our name, to the best of our knowledge. You can reach us at 309-794-1660 or hzimmerle [at] mjwlaw.com). 

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US Supreme Court Helps Insurance Companies, Screws Injured People

The US Supreme Court decided US Airways v. McCutchen today, allowing insurance companies to write their way around the common fund doctrine and similar law, and taking money away from injured people.

Make no mistake – this is a big deal.

See, the world used to work like this:

  1. Step 1: Person gets injured.
  2. Step 2: Health insurance company pays medical bills.
  3. Step 3: Injured person hires attorney, spends time, money and effort to settle case with tortfeasor. 
  4. Step 4: Injured person pays insurance company back, but keeps a fair percentage (typically 1/3 of the lien) for the time, money effort and attorneys fees spent in obtaining the settlement to pay the insurance company back. Without that effort, the insurance company would have gotten nothing.

Now things are different.

Step 4 now reads “Injured person pays insurance company back the full amount, so long as the insurance company requires them to do so.”

In some cases this won’t be a big deal. For many, many cases, liens and attorneys fees will eat up much or all of a potential settlement – especially in tougher cases, smaller cases, or cases with inadequate insurance. This is a lot of cases.

Bummer.

(Howard Zimmerle is a personal injury attorney in the Quad Cities of Iowa and Illinois. He has offices in Davenport and Rock Island. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

 

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