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Sunday 31 March 2013
Disability Insurance Bad Faith, Part 3
In part 3 of the Disability Insurance Bad Faith series, California insurance attorney Eric Ratinoff discusses insurance companies' obligations to California policy holders. 
The Bogus “Risk of the Procedure” Defense
With great regularity I hear people write off bad medical outcomes as simply a “risk of the procedure.” It happened again today in an email from a company that helps lawyers find medical-legal experts. One of their experts wrote:
A 52 year old woman presented to Hospital and underwent a total hysterectomy. The surgeon perforated her bladder during the procedure….
…The question is whether perforation of the bladder is a known risk of the surgery and, if so, are there ever instances where it is nonetheless a breach in the standard of care?
That is wrong, wrong, wrong, 1,000x wrong. That is not how to frame the question.
And you can appreciate that it is framed wrong if you simply substitute a car accident for the medical procedure. Isn’t getting into an accident a known risk of driving in a car?
The fact that something is a known risk is a game that defense lawyers play. It does not simply absolve a defendant.
But the real question that a jury gets is whether the injury could have been avoided with the exercise of reasonable care. So an auto wreck may be a known risk of driving in a car, or it may not.
An example: You drive on the highway and a deer leaps out of the woods into the path of your car. This may be unavoidable even with reasonable care. Or the deer may have been standing in that spot for 20 seconds but you were busy texting while driving and didn’t see it.
It isn’t any different in medicine, and those magic words “known risk of the procedure” should set off alarm bells. Is having a sponge left behind after surgery a known risk? Yes it is. But it is also negligent because someone wasn’t keeping track of all that went into the body to make sure that all came out.
A doctor might, or might not, have been negligent in the way treatment was rendered, but the fact that something is a “known risk” doesn’t answer the question.
If you ask the wrong question, you might be lead to wrong conclusions.
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Asbestos & Mesothelioma Litigation Part 3: History of Asbestos in the United States
In part 3 of our 8-part Asbestos Litigation series, Asbestos & Mesothelioma attorney Doug Rothschild explains the history of asbestos use in the United States. 
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Sen. Rob Portman, Gay Rights, and Tort “Reform”
Last week Ohio Senator Rob Portman made headlines when he reversed his stance on gay marriage. For a Republican, that was pretty big news. He did it after finding out his son was gay and reflecting on the meaning of love, marriage and religion.
But that isn’t why I’m writing.
I’m writing because, in his explanation, he went beyond the love/marriage/religion elements to reflect on the proper role of government in society. He wrote:
British Prime Minister David Cameron has said he supports allowing gay couples to marry because he is a conservative, not in spite of it. I feel the same way. We conservatives believe in personal liberty and minimal government interference in people’s lives.
So if he, as a conservative, believes in minimal government interference in people’s lives, why does he campaign on giving big government protections and immunities with various tort “reform” proposals that close the courthouse doors to those seeking justice?
One of the first things he did as a freshman senator in 2011 was introduce legislation that would impose a new statute of limitations on medical liability lawsuits and cap punitive and noneconomic damages.
His political view is summarized here:
Medical malpractice costs and the mounting costs of defensive medicine must be reduced through sensible legal reform and better health information.
Source: www.robportman.com/1on-the-issues (11/22/2010)
Really Senator? Is that what limited government is all about? Interceding on the rights of people seeking justice by protecting big business and insurance companies?
If someone would be kind enough to forward this to Portman, he might also learn that the artificial caps he supports because of “defensive medicine” have been proven by empirical evidence to be a complete bust. Health care costs in Texas, which instituted artificial one-size-fits-all caps in 2003 didn’t go down. Costs have actually gone up.
So Portman gets a special twofer: His tort “reform” policy contradicts his stance on federal power, and the basis of his policy is factually wrong.
If Portman wants to reign in federal power, as he states in part of his argument favoring gay rights, he may wish to revisit his other positions that call for increasing that power. Especially when increasing it fails to support his theories.
More on the hypocrisy between conservatism and tort reform here: Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)
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Saturday 30 March 2013
Featured Link — Child Injury Laws Blog
An interesting resource for those seeking information on the many types of injuries that children can suffer (and safety tips to avoid those injuries) is the Child Injury Laws Blog, published by Chicago personal injury attorney Jonathan Rosenfeld. This blog is worth reading. Check it out.
Source: http://www.pissd.com/2012/09/featured-link-child-injury-laws-blog/
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