As we approach Mother’s Day, we are reflecting on the hardworking mothers of special needs children we have represented.  It’s a difficult, often lonely job raising a child with developmental disabilities.  We have an ongoing commitment to making a difference in the lives of these mothers and their families.  Our advocacy on behalf of special needs children and their parents has been continuous over the last couple of decades.

We receive many inquiries about the unfortunate demise of babies before or at term. More than one million babies die on the day they are born every year worldwide, according to a report from Save the Children, a non-profit with the mission to improve the lives of kids in need around the world.  A recent article in USA Today discusses some very simple products that can save newborns.  http://m.usatoday.com/article/news/2137163

More frequently, however, we get calls about infants relating to injuries suffered during the birth process, and we see children diagnosed with Cerebral Palsy, Erb’s Palsy and other neurological conditions.  Changes in the health care system have led to an increase in the number of deliveries handled by doctors and nurses without adequate training and experience.  As we represent children and mothers who have been injured through negligence, we also seek to foster change that will ensure similar mistakes are not made again.

Due to the length of our experience in this area, we also link our clients with experts, resources, technology, research and developments that may aid in therapy and adaptive assistance for the children, as well as sources of aid for the parents, such as respite care.

New developments in treatment and therapies are assisting some of these children.  As an example, we note some increase in function found in babies who have been through hypothermia, or “cooling” protocol, immediately after birth.  This therapeutic hypothermia is a medical treatment that lowers the baby’s body temperature in order to help reduce the severity of damage to tissue after the brain has been deprived of oxygen and the body of blood flow.  The children we are encountering who have had access to this treatment do seem to fare better than those without it.

Among the extraordinary people we have had the privilege to represent, we look this week to the loving mothers of these beautiful children, and wish them peace, safety and health.

A study compiled by the Commonwealth Fund reports that the U.S. Government could save $2 trillion in healthcare spending over the next decade, if it takes measures to pin spending to economic growth.

Maybe such a course could help resolve this disconnect, as reported by the Huffington Post:

The United States has the world’s most expensive healthcare  system, which government forecasters say will cost more than  $9,200 this year for every man, woman and child. Spending growth  has slowed in recent years, but costs continue to outpace  inflation and restrain overall economic growth.

Despite the nation’s massive healthcare bill, research shows  that Americans die earlier and experience higher rates of  disease than people in other countries – regardless of age,  education, income, healthy behaviors or whether they have health  insurance.

See the full story here.

CBS News reports that a study released today by The Leapfrog Group grades 2,618 hospitals in 49 states on safety.  Massachusetts and Maine top the list with the highest percentages of “A” grade hospitals (83 and 80 percent).  New Mexico reportedly places last with only 7 percent “A” hospitals.

The study recognizes an imminent need for focus on hospital safety.  A statement released by The Leapfrog Group notes that “[a]t least 180,000 people are killed every year from errors, accidents, injuries, and infections in American hospitals.”

The study is not without its surprises and controversy.  CBS reports that the renowned Ronald Regan UCLA Medical Center is one of only 25 hospitals that received an F grade.  CBS reports that the hospital disputes the grade and the fairness of the scoring system, and claims one patient death in 2010 pushed its grade down from a C to an F.  The Leapfrog Group’s president and CEO, Leah Binder, is reported to stand behind the scoring system and UCLA’s grade.

If you’re curious how your hospital scored, there’s an app for that:  The study’s data can be accessed on your mobile device or over the web at www.hospitalsafetyscore.org.  A link to download the app (free) is available on the website.

On August 23, 2012, the California Supreme Court overturned an 80-year-old rule that worked to keep victims from recovering full compensation for their injuries.  The so-called “release rule” released defendants in multi-defendant lawsuits from having to pay jury verdicts, if a court ruled a prior settlement with any one defendant was not made in “good faith,” i.e., was too low.

Aidan’s Injury

Leung v. Verdugo Hills Hospital concerned a newborn, Aidan, who developed Kernicterus — a form of brain damage caused by excessive jaundice — while under the care of Verdugo Hills Hospital and his pediatrician.  The hospital downplayed known risks about the condition, providing outdated materials and advice to the parents.  The doctor allegedly ignored risk factors and warning signs of the disease.  As a result, a treatable disease progression resulted in profound, lifelong disability.

Because of the condition, Aidan, now 9 years old, has normal intelligence but no muscle control.  According to the child’s attorney, quoted in the San Diego Daily Transcript (SDDT):  “He can’t walk, he can’t talk, he can’t pick up a pencil, throw a ball.”   “It was 100 percent preventable.”

Unjust Result

Aidan’s suit was settled with the pediatrician for $1 million, the limits of his malpractice insurance policy, prior to trial.  A settlement demand of $2.1 million to the hospital was rejected.  At trial, a jury found the hospital 40% liable for Aidan’s injuries, and total economic damages of approximately $15 million (medical costs, not pain and suffering).  But the court found that the settlement with the pediatrician was too low — in “bad faith” — given the pediatrician’s likely large proportionate liability for Aidan’s damages.

Under the release rule, the hospital would have been released from paying any share at all of Aidan’s economic damages because of the court’s finding.  The rule provided that if a prior settlement with any defendant was held in “bad faith” — not in line with the defendant’s predicted proportionate liability – the other defendants were released entirely from paying any damages shared with that defendant.  This essentially erased the jury’s verdict and left the injured plaintiff with no compensation for his medical costs, save for the previous settlement amount.

“Release Rule” Overturned

Overturning eight decades of common law precedent, the state Supreme Court rejected the release rule in Leung.  The court refused to release the hospital from paying any portion of Aidan’s $15 million in medical costs simply because the doctor had agreed to a favorable settlement before trial.  The court also rejected the hospital’s alternative proposal that it should only be held responsible for a proportionate share of Aidan’s damages — 40% of the $15 million.  Instead, the court restored the pro-consumer and pro-victim intent of California’s tradition of joint and several liability.

Because the hospital rejected the pre-trial settlement demand of $2.1 million, it became responsible for paying the full damage amount of $15 million, minus the $1 million paid by the doctor.  If the hospital wishes to pursue the doctor for reimbursement of his share of the damages, it may now do so in a separate lawsuit.  But that burden is not saddled upon the injured plaintiff.

“It’s a very important decision in terms of abolishing an outdated and … unjust rule,” commented Loyola Law School professor John T. Nockleby, as reported by SDDT.  This decision should encourage settlements and get money for medical care in the hands of the injured more quickly.  It takes the power out of an archaic procedural rule and puts it back in the hands of juries.  Leung is a long-awaited victory for California patients and consumers.

For more information, or if you or a loved one have been injured in California, please contact the experienced lawyers at Mulligan Law.  Our telephone number is 619-238-8700.

Whenever someone has been injured by a product or by a service provider who has drawn them in via advertising of any kind, but particularly web advertising, further investigation is warranted.   There is a significant increase in paid, faked reviews on-line on various product and service review sites -known as “Astroturfing“, a take-off on grassroots campaigns, or fake grass.  These phony endorsements can expose companies to legal liability and monetary sanctions.

In July 2009, a plastic surgery company, Lifestyle Lift, reached a settlement with the New York Attorney General’s office with regard to reviews which were purporting to be submitted by very happy clients.  As it turned out, these were not actually customers, but employees of the company itself.  The Attorney General’s office released part of an internal email in which Lifestyle Lift gave the following directive to its employees:  “Friday is going to be a slow day – I need you to devote the day to doing more postings on the web as a satisfied client.”  Lifestyle Lift ended up agreeing to pay $300,000 in penalties and costs.  And, now it must live with the negative image it has created for itself in any Google search.

The Federal Trade Commission has also pursued charges for deceptive advertising of a similar nature against the California company, Reverb Communications.  The FTC alleged that Reverb had its own paid employees posting positive reviews as if they were customers for clients’ games in the Apple iTunes store, giving their product 4 to 5 starts and saying things like an “amazing new game.”  Consumers had the impression these reviews were made by ordinary people who had already bought the game.   The FTC did not condition its settlement on Reverb paying monetary sanctions, but this case is a clear warning that deceptive reviews cannot be tolerated.  Reverb had to agree to remove old reviews.

Some services now provide the reviewers rather than these coming from in-house.  It is not always hard to follow the trail of some of these paid reviewers to see that they are reviewing products and services in places ALL OVER THE COUNTRY on the same day, pretending to be delighted consumers, always with 4 and 5 star ratings.  You may see the same individual reviewer claiming to have elective surgical services in San Diego, their dog trimmed in Aspen and their tires rotated in Raleigh, all on the same day.  Look cautiously at all reviews.  Often, the reviewer adds personal details and descriptions that make them sound very real.  By checking the other reviews of the individual endorsers, however, you might find something much more deceptive.  

As consumer attorneys, we hope to fight against these practices.  They are unfair to regular, honest business owners who are out there giving it their all for good REAL ratings and positive Yelps, etc.   When these owners have to compete with paid fake testimonials, how can they possibly have the proper ranking the services are intended to provide?

When we are able to show that a marketer has engaged in this conduct, as well as  for instance showing that statistical claims are not true, we take a further stand for truth in advertising, and build a foundation for potential punitive damages.

With the advent of convenience store clinics and big-box docs, as written about in this article in the San Diego Union Tribune, there is a need for consumers to be very much on their toes, especially if symptoms do not get better quickly. Patients would be best advised to get second opinions or emergency treatment fast in those situations. All doctors are held to particular standards of care, and often speed does not equal quality. A one-stop shopping approach to health care may help for on-the-go convenience, but is not necessarily the best. This is particularly so if the ailment does not meet a standard profile, or the attention of a specialist is required.

The law in California is that physicians who elect to treat a patient even though the patient should have been referred to a specialist will be held to the standard of care of that specialist.  If the physician meets the higher standard of care, he or she is not negligent. (Simone v. Sabo (1951) 37 Cal.2d 253, 257 [231 P.2d 19].) This is a difficult standard to meet and general practitioners often have trouble meeting it. There should and will be times these convenience docs cannot treat the condition and refer the patient to someone working in the specialty field – cardiology, ophthalmology, dermatology, etc. While this blog is not meant to criticize the credentials of doctors working in these ‘faster, cheaper’ venues, this is just a general caution that health should never be taken lightly and while some illnesses can be addressed by over-the-counter, pharmacist or quick doc advice, if the problems persist or progress, the safest approach would be to get other medical help immediately.