Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

November 2009 Archives

RESOLVING YOUR PERSONAL INJURY CLAIM THROUGH BINDING ARBITRATION

The use of "binding arbitration" can be a useful way to resolve a personal injury case for accident victims. Often times, liability (who is at fault) is not at issue in a case, but the amount of compensation for the injures suffered by the victim cannot be agreed upon. The usual course of action in such a case is to file a lawsuit and let a jury decide the amount of damages to award. This method can be time consuming and expensive, depending on the case. An alternative to having a jury trial is to submit the case to binding arbitration. The arbitrator, which is selected and agreed to by the parties, is often an experienced retired judge in the same county or jurisdiction as the court where the case would be tried. The arbitrator has extensive experience in the type of case presented to him or her, and understands the issues presented and the value of the claim. Many times, the parties agree upon a "high-low" amount. This means that no matter what amount of money the arbitrator awards, the actual amount paid by the defenant cannot be lower or higher than the preset amounts. For example, imagine the "high" amount agreed to is $100,000.00 and the "low" is $20,000.00. After hearing the evidence presented in the case, the arbitrator awards $125,000.00. Because the parties agreed that the high amount was $100,000.00, the most the defendant will pay is the $100,000.00. On the other end of the spectrum, if the arbitrator awarded nothing, the plaintiff would still get $20,000.00. The parties agree prior to arbitration that whatever the decision of the arbitrator is, it is the final decision and no appeal can be taken. The arbitration process is generally quicker and more streamlined, and costs can be contained more easily than if the case went to trial. The advantages for plaintiffs include resolving the case quickly and ensuring that no matter what the decision, he or she will not walk away with nothing.

Supreme Court Hears Argument in Two Important Bankruptcy Cases

The Supreme Court hears oral argument today in two important consumer bankruptcy cases with potentially wide ranging impact on debtors and their counsel. At 10:00 a.m. the Court hears argument in the case of Milavetz, Gallop, & Milavetz v. United States (08-1119; 08-1225), which involves whether attorneys are "debt relief agencies" under the Bankruptcy Code and are thus restricted in what they may advise a debtor or potential debtor in bankruptcy, including the incurrence of debt in anticipation of a bankruptcy filing, such as buying a vehicle or obtaining other items of necessity by use of credit. The Bankruptcy Code places other restrictions on debt relief agents, including a required disclosure in any advertisement effectively announcing that the attorney is a debt relief agent who assists in the preparation and filing of bankruptcies. Lawyers are challenging the restrictions on First Amendment free speech grounds and maintain that the restriction precludes attorneys from offering otherwise sound legal advice to prospective clients.

Philadelphia jury awards $28 million dollars against two drug manufacturers

Last week, a jury in Philadephia found that Wyeth and Upjohn, drug manufacturing companies, acted with conscious disregard for the safety of women who took the drugs, Prempro. and Provera. The jury found that these companies deliberately mislead doctors and patients regarding the dangers of hormone replacement therrapy and the link between the drugs and the development of breast cancer. The Plaintiff in this case had taken the drugs for 11 years and subsequently developed breast cancer. The punitive damage award is in addition to the $6.3 million dollars it awarded to her for compensatory damages.

Kansas Supreme Court Hears Oral Argument on Challenge to Noneconomic Damages Cap

In late October, the Kansas Supreme Court heard oral argument in a case challenging the state's $250,000 cap on noneconomic damages. The Kansas cap has been in place since its enactment in 1988. The case giving rise to the challenge involves a woman whose right ovary was removed by mistake instead of her left. Thr jury awarded $250,000 for noneconomic losses, $150,000 for future noneconomic losses, $84,680 for medical expenses, $100,000 for future medical expenses, and $175,000 for loss or impairment of services as a spouse.

FDA Warns Use of Certain Antacids May Weaken Effectiveness of Heart Drug Plavix

The U.S. Food and Drug Adminstration (FDA) has issued a warning to users of Plavix (clopidogrel) in combination with another class of popular antacid drugs known as proton pump inhibitors like Prilosec (omeprazole) and Nexium (esomeprazole) can become weakened in their effectiveness at preventing clots and heart attacks. According to study information,the anti-clotting benefits of Plavix are cut almost in half when taken with over-the-counter or prescription Prilosec, according to a notice posted today on the Food and Drug Administration's website,The FDA hasordered Paris-based Sanofil and New York-based Bristol-Myers to update the prescribing information for Plavix and study the potential for other drug interactions. In the meantime the FDA has issued the following information statement which is quoted below:

JURY REJECTS MOTORCYCLIST'S CLAIMS FOR INJURY

In May of 2009, trial was held in Anne Arundel County in the case of a motorcyclist who was injured when he lost control of his bike and crashed. The motorcyclist alleged that another driver cut him off while trying to make a left hand turn in front of the him. The Defendant denied responsibility, arguing that the Plaintiff lost control of his motorcycle well before Defendant began to make her turn. The jury agreed with the Defendant, finding that the Plaintiff was solely responsible for his own injuries.

OB/GYN in Montgomery county found liable for bowel injury

Plaintiff presented to the defendant OB/GYN for outpatient laparoscopic surgery to remove an ovary. During the surgery, the defendant discovered extensive adhesions, which made the surgery much more complicated and difficult. The surgeon ultimately perforated her colon during the procedure. Plaintiff argued that given her medical condition, the removal of the ovary should not have been attempted laparoscopically and, once the surgeon encountered the adhesions, he should have converted to an "open"procedure. Further, the plaintiff maintained that defendant failed to timely recognize that he perforated her colon, resulting in severe infection.

Uninsured Motorists Coverage--Good Reasons for This Required Coverage

Maryland law requires every motorist to carry "uninsured motorist" (UM) coverage as part of their vehicle insurance coverage. This required coverage is designed to protect an injured motorist (whether bodily injury, property damage or both) from two all too frequent scenarios. First, it provides coverage when the at fault vehicle has no insurance coverage at all. Second, it provides "gap" coverage where the at fault driver has too little insurance to pay the full value of the claim. Indeed, despite the law, there are drivers who continue to operate vehicles illegally without insurance. In those instances, the claim would be submitted to the victim's UM carrier for payment. A UM claim is no-fault in that a claim against the policy will not affect insurabilty, renewability or rates.

Court of Appeals Reissues Waldt Decision Essentially Unchanged

The Court of Appeals of Maryland has reissued its decision in University of Maryland Medical System v. Waldt, which was recalled several weeks ago after it was initially issued. In a cursory review of the reissued opinion, it appears that Chief Judge Bell has now joined the majority on the issue of whether a retired physician who was designated as plaintiffs' expert was properly prohibited from testifying because his involvement in litigation-related matters exceeded the 20% ceiling established by Maryland statutory law.

Court of Appeals Hears Arguments in Malpractice Cap Case

Oral Argument was held before the Court of Appeals on November 5th on the critically important case of Lockskin v Semsker, where the trial judge in a medical malpractice case ruled that the cap on noneconomic damages added by the General Assembly in its 2005 amendments to the Health Claims Malpractice Act does not apply to cases where health claims arbitration is waived and the case is transferred to the circuit court for trial. The trial court's decision came as a surprise to the medical malpractice bar and has generated a great deal of controversy and uncertainty as to the value of claims and cases since the ruling came down.

New Article Debunks Myths of Malpractice Reform

The American Association of Justice (AAJ) todayreleased a new report entitled "Five Myths about Medical Negligence" that challenges what it claims arethe myths about medical malpractice reform including 1) there are too many frivolous suits; 2) medical malpractice lawsuits drive up healthcare costs; 3) doctors are fleeing because of medical malpractice lawsuits; 4) medical malpractice claims drive up premiums; and 5) tort reform will lower insurance rates. You can view AAJ President Anthony Tarricone's article on the Huffington Post. It is enlightening and on the mark as to the fallacy of those arguments asserted by large industries and the Republicans seeking to amend the health care legislation to include various limits on malpractice claims.

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