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June 12, 2007

By Greedy Trial Lawyer

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Some Doctors Don't Do Emergencies

Category: Desperate Defendants

"What was I to do? I was suddenly confronted by shoulder dystocia and simply forgot my training and preparation for this delivery complication." Mothers and fathers, if your obstetrician said this to you, would you be sympathetic and forgiving?

Court Finds Obstetrician Is Not Entitled To Emergency Doctrine Charge [In Shoulder Dystocia Situation]

An obstetrician is faced with an emergency during delivery. The infant is injured as a result of the obstetrician's actions to avert the emergency, and the parents commence a medical malpractice action. The question is - Is the obstetrician entitled to an "emergency doctrine" charge at trial? The Second Department had to decide this issue June 5th in Amodeo v Cumella, 2007 NY Slip Op 04762.

The "emergency doctrine" is a common law concept which recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency. A party is thus entitled to a charge on the emergency doctrine when, viewing the evidence in the light most favorable to that party, there is a reasonable view of the evidence that his or her conduct was the product of a sudden and unforeseeable occurrence not of his or her own making which leaves little or no time for thought, deliberation or consideration (Caristo v Sanzone, 96 NY2d 172).

Although defendant obstetrician testified that he did not anticipate the occurrence of a shoulder dystocia during the course of delivering the infant, he nevertheless prepared for the possibility of a shoulder dystocia in all of his deliveries. In addition, the expert obstetrician testified that the medical training received by obstetricians, with regard to the procedures to be followed when confronted with a shoulder dystocia, is standard and the obstetrician's management of such cases becomes "instinctive."

The Second Department found that since the defendant obstetrician was trained and prepared for the occurrence of a shoulder dystocia, which was not considered an unforeseen occurrence within the field of obstetrics, he was not entitled to the "emergency doctrine" charge.

I was nodding my head in agreement with the appellate decision and the summary of the opinion provided by New York Legal Update. Then, the legal blogger took a hard turn and began a criticism of the decision which is astoundingly naive.

The problem with the Second Department's decision, as I see it, is if a 1% chance of a particular event from happening does not constitute an emergency, what does? Is the Second Department saying essentially that because obstetricians are trained to anticipate and be prepared for all delivery situations the emergency doctrine never applies. If so, I believe the decision is incompatible with the purpose of the emergency doctrine. If there is only a 1% chance of shoulder dystocia occurring during birth, an obstetrician could go an entire career without ever being faced with the situation. Of course it is desirable to have obstetricians to be prepared for any type of emergency during delivery. However, the mere fact that they are so trained does not in any way lessen the fact that during a rare situation the doctor may have a limited amount of time to think and act to prevent injury. It is this fact - that the doctor has a limited amount of time to act - which should be the primary consideration in judging an obstetrician's actions in rare situations. It is precisely because there is limited time, that any sort of preparation or training becomes irrelevant. Training and preparation can easily be forgotten when confronted with a rare situation. That is why the emergency doctrine is recognized. And to say, as I believe the Second Department has now held, that obstetricians are not entitled to the doctrine is unwise.

The primary reason for the attendance of an obstetrician during labor and delivery is to assure a timely and professional response to any of the recognized potential complications which may suddenly occur. If an obstetrician can easily forget his training and preparation in the face of shoulder dystocia he is one incompetent professional who should not be jeopardizing the health of the infants he is hired to deliver.

June 02, 2007

By Greedy Trial Lawyer

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Hospital Risk Management Carried To Its Dishonest Extreme

Category: Desperate Defendants

There are hospitals that take the concept of risk management too far. From the Associated Press account of the conduct of one hospital's risk manager (and the likely assistance of other hospital folks) we learn post-malpractice deceit and concealment can be a management tool. After you read this report, take a minute to make a mental list of the people and positions who had to participate in, or have knowledge of, the dirty deeds. I come up with a rather large cast performing this risk management production.

Hospital sanctioned $1.3 million over lawsuit

A Parkersburg hospital has been ordered to pay a $1.3 million sanction in a medical malpractice case for allegedly violating court orders and other misconduct. Wood County Circuit Court Judge Robert Waters imposed the sanction against Camden-Clark Memorial Hospital in an order issued last week.

"Camden-Clark's violations of court orders, inaccurate answers in discovery, inaccurate testimony and all of its aggregated misconduct before this court, warrant substantial sanctions," Waters wrote in his order.

Waters' order came in a lawsuit that alleged malpractice in the death of Hilda Boggs. Boggs died in 2001 following surgery on a broken ankle.

Camden-Clark's alleged misconduct included failing to disclose to the plaintiffs during discovery that Sherry Johnston, the hospital's risk manager, had knowledge of the case, Waters said. During discovery, parties are required to disclose relevant information about the case unless it is protected by attorney-client privilege.

"Ms. Johnston, the hospital's own corporate representative, had interviewed at least eight key witnesses and possessed numerous documents critical to the facts of the case," Waters wrote.

Waters said Johnston allegedly told at least two witnesses to throw away or destroy notes, copies or documents they had made about Boggs' surgery.

"Camden-Clark's strategy in denying, throughout the case, things it knew well to be true went far beyond the privilege of putting the plaintiff to his proof. By breaching court orders, filing false discovery responses and by giving and permitting to be given inaccurate testimony under oath, and through multiple false statements to the court, the plaintiff and the jury, Camden-Clark engaged in litigation misconduct," Waters wrote.

Hilda Boggs appears to have selected a hospital that has lost its way in managing its risks.

May 29, 2007

By Greedy Trial Lawyer

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Expert's Competence To Evaluate Competence May Be Questioned

Category: Desperate Defendants

Sometimes the words just don't come out right during testimony. What's a witness to do when left should have been right, up should have been down or not competent should have been competent.

From Overlawyered we learn the dangers of being Overdoctored.

A Milberg medical miracle

One of those clients, Seymour Lazar, has been trying to escape prosecution by claiming to be ill, trotting out doctors to testify to a "litany of ailments," including "heart disease, stroke, cancer, diabetes, and gout." But there's more: he also claimed to be suffering from a "mental condition [that] could make following significant events of the trial impossible," as well as "major depression, memory loss, and fatigue." And, he's mentally incompetent.

That was two weeks ago... Now he's all better. Turns out that if he were mentally incompetent, the prosecution could lock him up for up to four months to determine whether he would become competent in the future. Whoops! That wasn't what defense attorneys wanted. So they had to repudiate their own expert's testimony:

A psychologist who testified that a defendant was not competent to stand trial in a federal criminal case against a leading class action law firm now says that assertion was mistaken.

[...]

"I believe that I testified in error when I stated that he is not competent," the psychologist retained by the defense, William Jones, wrote in a declaration filed Monday in federal court in Los Angeles.

You have to admire the unselfish act of self-repudiation by this expert. As soon as he became aware of his error he stepped forward to correct it. Now, his competence as an expert will likely suffer in future testimony. Does anyone see poetic justice here?

October 30, 2006

By Greedy Trial Lawyer

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BUMBLING NINCOMPOOP Seeks Change Of Venue For Malpractice Trial

Category: Desperate Defendants

Is it worse to be a bumbling nincompoop or a BUMBLING NINCOMPOOP?

Beleaguered surgeon wants malpractice cases tried elsewhere

The attorney for a former North Platte doctor facing five malpractice lawsuits in Lincoln County said his client can't get a fair jury trial here. William Tannehill of Lincoln said [Dr.] Andrew Chontos can't get a fair trial because of the news stories written about the case.

Tannehill argued that news coverage of the lawsuits filed against Chontos was excessive. His argument focused primarily on the coverage of the lawsuits by the North Platte Bulletin.

Tannehill argued that the Bulletin had reported on each lawsuit against his client after it was filed. He said the language in the articles published both in the print edition and on the online web site "inflamed" the readers.

Tannehill also complained about the Talk Back feature on the Bulletin web site.

"They allow readers to anonymously post reactions to the articles," Tannehill said. "People were affected by the number of lawsuits," Tannehill said. "They used words like 'quack' and said his license should be taken away."

Tannehill said one reader ranted because Chontos now works at a Veterans Administration hospital and the reader was concerned because he was "working on vets." He said one reader even posted in all caps.

"As your honor knows, that's the equivalent of shouting on the Internet," Tannehill said.

Tannehill's last complaint to Murphy was about a cartoon that appeared in the Oct. 18 Bulletin that showed Chontos telling a patient his hysterectomy operation had gone well. The cartoon featured the words "potential juror" above the patient's head.

"They're making a joke of Chontos' reputation," Tannehill said. "They are portraying him as a bumbling nincompoop."

Or, should that be BUMBLING NINCOMPOOP?

October 13, 2006

By Greedy Trial Lawyer

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State Farm's Executives Not Beloved In Southern Mississippi

Category: Desperate Defendants

To State Farm Insurance I say Welcome to the world you have created. It is the world of the greedy trial lawyers. I believe you have more than done your part to paste the greedy at the front end of our profession. After years of trashing the motives and efforts of America's trial lawyers and poisoning the minds of jurors, you seem to feel juror bias against insurance executives is a problem in southern Mississippi.

State Farm asks court to move Katrina insurance lawsuits to avoid bias

State Farm Insurance on Wednesday filed a motion seeking a change in venue for lawsuits filed in southern Mississippi by individuals who claim insurance carriers failed to pay insured losses to those affected by the destruction of Hurricane Katrina. The damages requested in the lawsuits total about $20 billion and State Farm is petitioning the court to remove the cases to northern Mississippi where the opinion of insurance companies is more favorable.

State Farm included survey results with its motion, which show that 49 percent of people in southern Mississippi believe that insurance executives are on the same level as child molesters. Additionally, the survey revealed that 88 percent of homes were damaged in southern Mississippi while just 12 percent of northern Mississippi homes were harmed. State Farm is the largest provider of homeowners' insurance in the state.

You are probably right that the headline would read Greedy Trial Lawyer Challenges Child Molester Executive On Stand. My money would be on the Trial Lawyer. But, you may still have time to make child molesters likeable.

August 20, 2006

By Greedy Trial Lawyer

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"Dead Smokers For Big Tobacco" In Formation

Category: Desperate Defendants

Big Tobacco, in light of the recent federal court ruling labeling its conduct as deceitful, is forming a new group tentatively named Dead Smokers For Tobacco. It is being modeled after the public relations effort of Wal-Mart which is fully detailed at SourceWatch.

Working Families for Wal-Mart

Working Families for Wal-Mart announced its formation on December 20, 2005 to counter criticism from groups, such as Wake Up Wal-Mart and Wal-Mart Watch. The group is "partly funded" by the Bentonville-based Wal-Mart, that corporation's spokesperson, Sarah Clark, told the Associated Press, without providing details.

According to the organization's official website, "Working Families for Wal-Mart is committed to fostering open and honest dialogue with elected officials, opinion makers and community leaders that conveys the positive contributions of Wal-Mart to working families.

Dead Smokers For Tobacco is seeking a channeler who specializes in the spirits of dead lung cancer victims who had two-pack a day habits to serve as President.

June 26, 2006

By Greedy Trial Lawyer

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Flurry Of Motions Follows $28M Malpractice Verdict

Category: Desperate Defendants

After the defendants refused to settle a medical malpractice claim for $275,000 and managed to hold the jury verdict to $28 Million the defense team has filed a flurry of motions.

What should have occurred, but rarely does in medical malpractice cases, is a flurry of negotiations well before tens of thousands of dollars were spent trying this case.

Jurors face scrutiny after verdict on malpractice is the headline in the Orlando Sentinel.

SANFORD -- The size of the malpractice verdict was stunning: $28 million, one of the biggest in Central Florida history.

Now, as the losing attorneys work to knock that down, they're also trying a rarely used and very aggressive tactic: attacking individual jurors and accusing the whole panel of prejudice.

Defense attorneys say three of six jurors lied during jury selection, and they want those jurors and the others hauled back into court to explain themselves.

"It is obvious we feel that justice was not served by this verdict, and we are going to zealously pursue all appropriate remedies," defense attorney Richard Womble said.

He represents Dr. Robert Bowles, a longtime Longwood obstetrician-gynecologist, and his medical group, Physician Associates of Florida. In April, a jury found them guilty of malpractice.

Jeannette Davis, 42, a state Health Department investigator from Altamonte Springs, underwent surgery in 2001 for minor incontinence. But things went wrong, and now she cannot urinate naturally. She says she must catheterize herself twice a day, something that will last the rest of her life.

Before the trial began, Davis' lawyer, Joseph Taraska, had offered to settle for $275,000, according to court records. But the doctor, his partners or his insurers said no.

Since the trial, Womble has filed a flurry of motions, attacking the verdict in a variety of ways. Some are conventional: He is asking Circuit Judge Debra S. Nelson to order a new trial, alleging, among other things, that Davis gave misleading testimony and that her attorney made an improper closing argument.

He is also asking Nelson to reduce the judgment to $290,000.

But his most dramatic request is to interview jurors.

"It's very rarely granted because I think the court, understandably, doesn't want to interfere or impose upon the province of the jury," said Scott Noecker, one of Davis' attorneys.

May 24, 2006

By Greedy Trial Lawyer

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Texas Medical Board May Be Doing Its Job - Sound The Alarm

Category: Desperate Defendants

Just when we thought we had rid the medical waters of sharks in Texas and elsewhere with Tort Reform a new threat to doctors has appeared.

Tort reform and the rise of the state medical board.

Since 2003 disciplinary actions by the board have dramatically increased and many physicians fear that the board is getting out of control

The rare but potential risk of a multimillion-dollar jury award has been supplanted by a rare but increasing potential risk of medical license suspension or even loss. Patients now know this and are increasingly willing to use it to their advantage.

Anyone for Board Reform? We certainly cannot tolerate patients using a state medical board to their advantage.

May 09, 2006

By Greedy Trial Lawyer

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Catholic Church Finally Takes Aggressive Stand Re Sex Abuse Scandal

Category: Desperate Defendants

There it was, reported by the Associated Press. The Catholic Church is finally taking an aggressive stand in the sex abuse scandal.

Some Catholic leaders take stand against lawyers in abuse cases

As the cost of clerical sex abuse surpasses $1.5 billion, some U.S. Roman Catholic leaders are taking an aggressive stand against lawyers who represent victims.

The new development was triggered in part by proposals in several state legislatures this year that would set up a brief period when molestation claims could be filed - even if the time limits for lawsuits had passed.

Denver Archbishop Charles Chaput portrayed the bill introduced in Colorado as part of a conspiracy between advocacy groups and attorneys aimed at enriching lawyers, all at the church's expense.

April 24, 2006

By Greedy Trial Lawyer

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Merck Needs Mariano Rivera

Category: Desperate Defendants

The headline makes the litigation seem almost like a sporting event. 3-3 Vioxx tie shows pattern for Merck, plaintiffs

But, the pattern is the start of an 11,500 game season.

That is the number of Vioxx cases that have already been filed. Here are some other important numbers: $50 billion (the total potential liability of Merck residing in the Vioxx claims) and $298.5 million (the total amount of the Vioxx verdicts to date).

From where I sit Merck's plan to try each Vioxx case instead of attempting a global settlement is going to require a lot better pitching.

April 19, 2006

By Greedy Trial Lawyer

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The Malpractice Defense

Category: Desperate Defendants

A criminal defense lawyer has a right to float any ethical theory in an effort to avoid a conviction. However, this one may strain the limits of common sense. An article in The Olathe News from Kansas details the malpractice defense being offered to avoid a murder conviction. In a nutshell, even though the defendant nearly crushed the victim to death and required him to have three surgeries, the defense is that malpractice intervened and was the real cause of the death. Nice try!

A doctor and forensic pathologist testified Tuesday that if 29-year-old Jonathan U hadn't gone to the hospital the day he was crushed between a car and a building, he would have died. And both said injuries from when U was crushed by a car driven by Brad J. Jones, who is on trial for Jones' murder, caused U's death.

But the defense contends it was not the injuries U sustained in the collision that killed him but improper treatment while he was in the hospital. Defense Attorney Carl Cornwell plans to put a renowned pathologist on the stand today to counteract the testimony of the coroner and the primary surgeon who treated U while he was in the hospital, Dr. Steven Behrends.

U tried to take back a purse Jones stole from a woman in the Super Target parking lot May 20, 2005. U was hanging half-out of Jones' car when Jones took off and ran into the wall of Petsmart, crushing U between the door and the frame of the car. Jones pleaded guilty Friday to stealing the woman's purse and has admitted fleeing in his car.

Dr. Behrends explained that U had three surgeries while he was in the hospital. The first was to repair damage to multiple organs, the next was to repair a broken pelvis and the final to remove an intestinal blockage that had developed. He described the multiple internal injuries U had in his abdomen, including a tear near the beginning of his small intestine that has a 50 percent mortality rate.

Handler, the coroner, said U's broken pelvis also is an injury with a 50 percent mortality rate.

Both doctors said U's body was in septic shock the last three days he was alive, meaning an overwhelming infection had taken over his body. U had lost the use of one of his kidneys and could not consume any food or liquids outside his IV. His abdomen was bloated, and Guinn showed a picture of severe bruising across U's back that caused an audible reaction in some jurors.

In his cross examination of the doctors, Cornwell pointed to a bacterial infection that invaded U's colon during his last days as the cause of death. He questioned whether doctors should have known about it or done more to treat it. Handler said it wasn't the primary reason U died on June 8, 2005. "I view this as the endpoint in a chain of events that started with the crush injury," Handler said.

February 11, 2006

By Greedy Trial Lawyer

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Hospital Notices 100 Medical Malpractice Claims Against Surgeon

Category: Desperate Defendants

A surgeon with over 100 medical malpractice lawsuits pending against him is upset because the hospital lifted his privileges. He claims the actions of the hospital interfered with his relationship with his patients. It looks to me like the interference comes about 99 patients too late.

Lawsuit against hospital by ex-surgeon dismissed

A federal judge has dismissed a former Putnam General surgeon's lawsuit against the hospital.

U.S. District Judge Robert C. Chambers dismissed on Wednesday the lawsuit by Dr. John A. King, who has more than 100 medical malpractice lawsuits pending against him for his surgeries at Putnam General between November 2002 and June 2003.

Putnam General removed King from its staff after the hospital conducted its own internal investigation of his surgical operations.

In his ruling, Chambers ... rejected King's claim that Putnam General violated "due process" procedures by removing him from its staff. Because Putnam General is not a state or government agency, King could not file a "due process" claim, the judge said.

Chambers dismissed King's "breach of contract" claim, stating that hospital and medical staff bylaws "do not constitute a contract between the hospital and its personnel."

Chambers also dismissed King's claim that Putnam General interfered with his contractual and business relationships with the hospital and with individual patients. Chambers said Putnam General was not an "outside party" that could have interfered with those relationships.

Source

February 02, 2006

By Greedy Trial Lawyer

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Rape By Any Other Name Is Not Malpractice

Category: Desperate Defendants

Why would a nursing home want to call the rape of one of its residents by an employee an act of malpractice? Well, it turns out that, by Louisiana statute, there is a cap on damages for malpractice cases. If there had been a lower cap imposed on claims for identification theft I presume the nursing home would have given that a try.

Judge says lawsuit in rape isn't malpractice

A lawsuit against a Carencro nursing home on behalf of a resident who was raped by an employee will not be tried as a medical malpractice case, a judge ruled Monday.

The lawsuit was filed in October by curator Robert L. Gauthier - an advocate appointed by the court to act on the rape victim's behalf - against Evangeline Oaks Nursing Home.

In September, the nursing home employee, Donavon Despanie, 20, pleaded no contest to simple rape. He is set to be sentenced Feb. 8, and could face up to 25 years in prison.

At the time of the incident in October 2004, Despanie worked as a certified nursing assistant at the nursing home. Police have said other employees walked in on Despanie raping the then 92-year-old woman, who suffered from dementia.

In a hearing Monday before Judge Kristian Earles on the civil lawsuit, Jennie Pellegrin, attorney for the victim, claimed the nursing home was trying to limit its liability by turning the case into a medical malpractice case - in Louisiana, there is a cap on malpractice damages of $500,000.

"Essentially, what they're saying is that we shouldn't be allowed to recover any more than that," Pellegrin said after the hearing.

Source

December 29, 2005

By Greedy Trial Lawyer

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Doctors' Animated Cartoon Takes Medical Malpractice Debate To New Low

Category: Desperate Defendants

Turn off your brain and watch how one group of doctors tries to protect patients now. (Hint - they will not be improving the quality of your care.) Charlatans' Web, "a web-cartoon by Protect Patients Now (a project of a 230,000 medical specialist strong outfit) calls out lawyers as the reason that malpractice rates skyrockets, doctors flee and health care options deteriorate. Is it really this simple?" This Makes Me Sick comments on the newest low in the national debate over medical malpractice. The cartoon can be watched at Protect Patients Now. I may be greedy, but I see very little redeeming social value in this artistic creation. My cartoon, which is in production, is Ninja Lawyers Against The Evil Empire.

December 01, 2005

By Greedy Trial Lawyer

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Ford Relies On Laws Of Nature In Appeal

Category: Desperate Defendants

The shock of a $47.7 million verdict has caused Ford Motor Co. to turn to the laws of nature in its appellate argument. Ford's crack lawyers argued that great physical laws of the universe were its star witnesses at the trial level and no jury could contradict them. In its brilliant brief Ford contended that the verdict for the paralyzed victim of its defective vehicle was the equivalent of a finding that the earth is flat. In reality, the Ford position is the equivalent of arguing that it alone possesses truth. We can expect Ford to expand on its appellate strategy in the future with such insights as what goes up must come down or the catchy the sun will come up tomorrow.

According to an article at Law.com Ford would be better off producing witnesses who are persuasive to jurors. Maybe it needs to heed the universal truth that a defective product can cause catastrophic injuries.

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November 17, 2005

By Greedy Trial Lawyer

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Scapegoating The Nurses Caught By Arkansas Supreme Court

Category: Gaming The System

Nice try, Dr.Costa. The legal sleight of hand of your defense attorneys was pretty good. You almost skated free by convincing a jury that if nurses committed malpractice your own conduct, no matter how negligent, should not create any liability on your part for the cerebral palsy of a newborn. The Arkansas Supreme Court, according to the Hope Star News, has caught this miscarriage of justice and sent you back to a jury trial over your conduct or misconduct. You see, sometimes there is more than one bad actor contributing to a serious injury. Nurses are certainly involved in pre-delivery care, but they do not have a big red Scapegoat printed on their foreheads.

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November 10, 2005

By Greedy Trial Lawyer

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Scorched Earth Does Not A Good Defense Make

Category: Desperate Defendants

It may not make national headlines. Or have the familiar ring of frivolous lawsuit. But, trial lawyers know that when giant corporations or other mega-rich defendants have a lot to lose and want to win badly enough they deploy the scorched earth defense. If it sounds like a military term that is because it is a military tactic. And, that is all it should be. Recently, a judge had the opportunity to see it deployed in her courtroom and did not like what she saw.

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November 07, 2005

By Greedy Trial Lawyer

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Special Courts For Special Folks - Healthcare Providers

Category: Desperate Defendants

The healthcare industry acknowledges that medical errors are killing and injuring thousands of patients every year. Its solutions have included caps on damages, limits on attorney fees, statutory immunities for certain providers, screening panels of similar providers, special requirements for expert witnesses, among others. Now comes the ultimate nuclear proposal: special medical courts. Why not special drug manufactuer courts or even drunk driver courts? Drug manufacturers and drunk drivers are definitely having a difficult time dealing with our normal court system, its judges and juries. They would benefit tremendously from having a more undertanding system, one that is focused on giving them a better deal.

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