Some doctors in New Jersey are now asking their patients to sign away their legal rights.

The American Association of Justice cites to Dick Dahl's story published at LawyersUSA:

A group of New Jersey ob-gyns has begun asking prospective patients to sign away their right to a jury trial, touching off a debate about the enforceability of the waivers.

Citing the high cost of medical malpractice insurance, more than a dozen ob-gyns have joined Obstetricians & Gynecologists Risk Retention Group of America (OGRRGA), a new Montana-based company that is reportedly reducing their premiums by about 50 percent. As part of their participation in the group, these physicians are requiring patients to sign agreements stating that they will pursue any subsequent disputes through binding arbitration.

They also must agree that pain-and-suffering awards will be capped at $250,000.

The spokesperson for the physicians' group, Ridgewood, N.J. ob-gyn Ruth J. Schulze, has been a longtime proponent of measures to reduce the cost of medical malpractice insurance. She's pushed for legislation to limit the size of malpractice awards, and in 2005 she stopped delivering babies in order to reduce her premiums.

"The medical liability system is irrevocably broken and needs to be changed," Schulze wrote in an op-ed article in a recent issue of a local newspaper, the Bergen County Record. "This crisis has been escalating over the last decade with Bergen County losing more than 30 percent of its practicing obstetricians in the last five years."

A new kind of medical insurer

OGGRGA is a non-traditional insurance group that meets the requirements of a the federal Liability Risk Retention Act of 1986, allowing the creation of self-funded groups with the power to write insurance in all 50 states without having to comply with the insurance laws and regulations in each state.

Since these entities need to be licensed in just one state, they can often operate by a looser set of regulations. For example, Montana law imposes a minimum capital requirement of $750,000 - far less than the $4.2 million minimum in New Jersey.

Eric S. Poe, a lawyer with NJ-PURE, a New Jersey medical malpractice insurer, said the federal statute was intended to provide a means for companies to reduce their insurance costs - not as a mechanism to resolve medical disputes involving individuals.

"It was created to [help] commercial entities that wanted to create their own insurance without having to go to an insurance company," he said. Congress "never anticipated that risk retention groups would be used to start medical malpractice insurance carriers."

The Montana group's pitch to physicians is that it is able to keep their premiums low because of its binding arbitration requirement, which it calls "the heart" of its program.

But is a contract that calls for the signer to waive the right to a jury trial enforceable?

Alive and well elsewhere

Jeffrey S. Badgley, a medical malpractice defense lawyer in Winter Park, Fla., points out that the use of arbitration agreements has expanded throughout the country as a way to reduce tort damages.

"This is a program to come up with a more rational and reasonable way of resolving disputes between physicians and patients," he said. "The tort system has produced some very unsatisfactory results. It's expensive, it's time-consuming, and oftentimes patients must sacrifice half of the money given them by juries."

Badgley cited California as a state where medical insurers have required binding arbitration for years.

Eugene A. Rosov, OGGRA's president, said that Kaiser Permanente, a large health insurer, has required patients to agree to binding arbitration for years.

"Apparently, they haven't run into any significant problems," he said.

He also noted med-mal lawyers are thriving in spite of the new agreements, since arbitrations are frequent and provide rapid payouts.

Redwood City, Calif., attorney Michael J. Brady, who administers the Kaiser Permanente program, predicts growth of arbitration requirements nationwide.

"Since the year 2000, the U.S. Supreme Court has decided three cases dealing with the scope of the Federal Arbitration Act," he wrote on the OGGRA website. "The essence of these cases says this: the [Act] is supreme. ... The effect of the U.S. Supreme Court decisions means that it will be very difficult for a state court to find that a private arbitration contract is unconscionable."

But others are doubtful.

A different story in NJ?

Poe believes the arbitration clauses work in California because the state already has a $250,000 cap on non-economic damages, which limits the effect of arbitration. He also noted that California is the only state he's aware of that requires "statutory notice forms" that explain arbitration agreements to patients. He said that in his opinion the absence of notice requirements in New Jersey will render the agreements unenforceable.

According to Jennifer Arlen, a professor at New York University School of Law, "Most jurisdictions have ruled that physicians and hospitals cannot require patients to waive their rights to recover damages for medical malpractice. One concern was that patients often would not be fully informed about these clauses in advance. Another was that patients might be contracting under duress. There was also the idea that tort liability is important for regulating medical care."

Poe agrees these concrns will make the New Jersey agreements unenforceable.

"The patient has to know that there can be no repercussions of his or her choice not to sign," he said. "These doctors are saying that if you don't sign we may choose not to treat you. That's clearly contrary to case law."

Furthermore, he said New Jersey regulations on binding arbitration don't cover consumer arbitration, "they talk about binding arbitration as something involving two commercial entities, not a doctor and a patient."

In Poe's opinion, "there's no chance ... these things are enforceable in New Jersey. I don't think one trial lawyer in the state is worrying about binding arbitration [in the med-mal context] being enforceable."

He also points to another enforceability problem: there's a second party involved.

Most signers of these ob-gyn arbitration agreements are, presumably, pregnant women. Poe said that most states, including New Jersey, have a two-year statute of limitations for medical malpractice claims that begins to run when a patient knows or should have known he or she had been injured by malpractice or negligence.

But that statute of limitations wouldn't apply to the baby. The statute of limitations on the child's claim wouldn't begin to run until he or she turned 18.

"Does a mother have a right to sign an arbitration agreement that binds the child?" asked Poe. "How can a child be giving up the right to a jury trial when he's in the womb?"

But Schulze emphasized that if patients don't want to sign the agreements they are free to seek medical help elsewhere.

"[B]inding arbitration may not be right for everyone and may not be appropriate for certain medical settings such as emergencies," she told the Record, "but it is completely appropriate for each individual patient to make that personal decision."

A program on the move

OGGRGA was created last year, and its website says it intends to operate in Florida, Illinois, Ohio, Connecticut and Maryland, in addition to New Jersey.

In Florida, the issue has already heated up. The Florida Medical Association is encouraging its members to get patients to sign waivers agreeing that they will limit non-economic damages to $250,000.

Frank Petosa, president-elect of the Florida Justice Association, said some physicians are already doing so.

"Unfortunately, the Florida Medical Association has made restricting the rights of patients in our state its primary focus," he said. "These waivers are potentially illegal and they're clearly unethical."

Plaintiffs' medical malpractice lawyer and M.D. Lee S. Goldsmith of Englewood Cliffs, N.J., doesn't believe the arbitration contracts will hold up in the state's courts. First, he said, the state requires doctors to have $1 million in insurance coverage, and he doubts whether physicians in risk retention groups can meet that.

Second, he said, "This is a contract of coercion. They're saying, 'If you want me to treat you, you have to sign this contract.' Maybe it's good business for the obstetricians and the insurance company, but it's bad medicine."

The lower premiums are based on the $250,000 caps, "but what happens if courts don't honor them?" he asked. "If you have a brain-damaged child, that is a case that anyone would pursue very vigorously."

New risk for doctors?

Poe believes the lower premiums will create some serious risk for doctors.

Because risk retention groups don't need to comply with state insurance regulations, they are also not protected by state guaranty associations, meaning that if a group becomes insolvent the personal assets of the doctors are at risk.

Arlen, at NYU, argues that fighting against the tort liability system isn't the best way to try to cut costs. She noted that a few years ago the medical group with the highest premiums was anesthesiologists.

"But instead of lobbying for tort reform, they did a study to see whether there were systematic things they were doing wrong that harmed their patients. They found that there were, and they fixed the problem - basically by adding some equipment that reduced ... inattentiveness and inattention by anesthesiologists. As a result, their insurance rates plummeted, and today they have among the lowest insurance rates."

Arlen suggested that other specialties take the same approach and look at their practices to find ways to reduce premium costs like the anesthesiologists did.

"There's been too great an emphasis at trying to get out from under the tort system," she said.

Rosov said that in selling plans to ob-gyns, OGRRGA seeks "commitments that they will improve their practices every single day to reduce the need for arbitration.

"My broad view is that there's plenty of blame to go around for everybody, including lawyers and doctors," he said. "Maybe what we're doing is the wrong thing. I hope not; I pray not. But we do know there is a problem. We're trying to fix a broken system."

Questions or comments can be directed to the writer at: dick.dahl@lawyersusaonline.com

Las Vegas personal injury lawyer Noel Gage was charged in what is described as a "wide-ranging and expansive" investigation into the way that certain personal injury cases were allegedly handled.

The following quotes come directly from the Las Vegas Review Journal on May 23, 2007:

Las Vegas personal injury attorney Noel Gage surrendered to the federal government Tuesday after he was indicted on charges related to a wide-ranging scheme that involved inflated medical costs and jacked-up settlements.

Gage is the second person indicted in connection with what authorities allege was a multimillion-dollar ruse. Gage faces 18 felony charges including conspiracy, mail fraud, money laundering, aiding and abetting and obstruction of justice.

In March, a federal grand jury in Las Vegas indicted Indiana resident Howard Awand. Awand "purported to be" a medical consultant, federal prosecutors said.

Authorities alleged that Awand recruited a network of doctors who agreed to refer patients to him and that he would refer the patients to personal injury attorneys, including Gage. Gage would provide Awand access to clients' confidential medical and legal information, authorities said.

Awand and Gage would steer the clients to doctors who would provide their services on a medical lien basis, all the while concealing that Awand had agreed to buy the lien at a steep discount, authorities allege. The clients would be required to pay the full value of the liens, and Awand then would pay kickbacks from the profits to those involved in the scheme, according to the indictment.

The health providers received kickbacks for providing false testimony for the personal injury claims, and the lawyers promised not to sue the participating doctors for medical malpractice, authorities alleged.

Gage was a recipient of the kickbacks, according to the indictment, but it does not specify who paid Gage or how much he received.

Acting U.S. Attorney Steve Myhre indicated Tuesday afternoon that more indictments are to come in the case, but he would not say how many more people he expects will be charged.

"This is a continuing investigation; it's wide-ranging and expansive," Myhre said after Gage's initial appearance in court. "It will continue into the foreseeable future."

The indictment handed up against Gage shed light on what authorities alleged was a corrupt relationship that Awand established with Gage and other doctors and lawyers. Gage paid Awand and the doctors for the referrals, according to the indictment.

Once Gage represented the clients, he provided access to their confidential medical records to Awand, "falsely and deceitfully representing to the client that Awand was a medical consultant, without revealing that, in truth and in fact, Awand was part of a broad scheme to defraud," the indictment said.

Awand and Gage persuaded the clients to seek medical treatment from health providers who agreed to treat the patients on a medical lien payment basis, meaning patients could pay their bills after their injury claims were settled. "The medical lien allowed healthcare providers to charge clients for services and procedures at grossly inflated prices," the indictment said.

The health care providers, according to court documents, had a secret agreement to sell the medical liens to Awand at a "steep discount."

In their efforts to obtain settlements or judgments, Awand and Gage filed lawsuits against individuals involved in the claim or insurance carriers, according to the indictment. Health care providers involved in the scheme offered testimony that included false or misleading statements, according to the indictment.

After claims were settled, the inflated medical lien costs were deducted from their settlements, and the participants in the scheme then got kickbacks out of the windfall, authorities alleged.

The indictment outlined a case in which a patient became "profoundly and permanently disabled" after treatment from health care providers not involved in the scheme. A physician working with Awand learned of the case and had the patient referred to Awand.

In September 2001, Awand referred the case to Gage. At the encouragement of Awand and Gage, the client signed medical liens for treatment received through June 2003.

"Gage and Awand knowingly misled Client 1 to believe that Client 1 was personally liable for the full face value of the lien when they both well knew that Awand would purchase the lien at a discount," the indictment said.

Gage and Awand filed lawsuits against "individuals and insurance agencies" on behalf of the client, according to the indictment.

During a two-year period ending in December 2003, Gage disbursed more than $7 million in proceeds from the settlement of the client's lawsuits. Gage paid Awand $1 million from the settlement, explaining to his client that the payment was for contingency fees, the indictment said.

On top of that, Awand got $347,754 from the proceeds, and Gage told his client that payment was to settle liens with Valley Hospital Medical Center, the indictment said. Awand had bought those liens for the discounted price of $130,000, the indictment said.

Gage paid Awand an additional $12,000, explaining to the client the money was for another medical lien, the indictment said. But that lien, issued by a doctor who was a participant in the scheme, was actually for $5,000, according to the indictment.

Awand and Gage also withdrew another $430,000 from the settlement and explained that payment was needed to pay off additional contingency fees, the indictment said. The money instead went to the physicians who participated in the elaborate plan, the indictment said.

In the indictment, federal prosecutors outline a second client's case that involved a similar pattern of behavior by Awand and Gage.

The obstruction of justice charge against Gage stems from his grand jury testimony. When the grand jury requested to see certain documents from Gage's office, the attorney failed to produce checks written to Awand or his medical consulting companies, the indictment said.

A second witness tampering charge was added to Awand's case on Tuesday. He is expected to appear in federal court later this week.

After Gage's court appearance Tuesday, he declined to comment on the case. He indicated that he is confident he will be cleared of the charges.

"Are you going to give me this kind of news coverage when I'm adjudicated?" he asked reporters outside the courthouse.

Gage was admitted to the Nevada State Bar in 1998. He earned his law degree from the University of Michigan in 1962, according to the Web site lawyers.com. The site said Gage, who is a partner in the firm Gage & Gage, specializes in products liability, personal injury, employment discrimination, medical malpractice and general civil practice.

The following blurb comes from the Nevada Supreme Court's website as of today:

"Over the past 30 years, Nevada's Judicial and Legislative Branches have partnered to promote the creation of an intermediate appellate court - the Nevada Court of Appeals - and are in the process of doing so again.

A new study compiled by the Nevada Supreme Court at the behest of the Nevada Legislature demonstrates that the time is right to establish the new court level.

Nevada is one of just 11 states that do not have an intermediate appellate court, placing the burden on the Nevada Supreme Court to resolve all appeals. Currently, the seven-member Court must address more than 2,000 matters annually - one of the heaviest caseloads in the nation.

My law firm in Nevada has handled numerous medical malpractice and injury cases that involved decubitus ulcers.

I received this description of decubitus ulcers from D. Garth Sullivan at INDOX Consulting, a medical expert service:

Chronic lower extremity ulcers affect approximately 2.5 million to 4.5 million people in the US. In addition to pressure ulcers, this growing clinical problem is most prominent among the elderly. Nonhealing or slow healing wounds represent a major health burden and drain on resources and contribute to substantial disability, morbidity, and costs. Multiple factors have been identified as contributors to impaired wound healing, such as, ischemia, infection, advanced age, malnutrition, diabetes, and renal disease. Other conditions, such as cardiac and lung disease, decreased cognitive function, endocrine disease, GI disease, hematologic disorders, incontinence, musculoskeletal problems, neurological disease, alcohol/drug abuse, immunosuppressives, chemotherapy, steroids, smoking, as well as inadequate wound care have been implicated.

Malnutrition has been specifically associated with the extent and severity of pressure ulceration. Appropriate nutritional support, pressure relieving surfaces, turning schedules, and debridement of slough or necrotic tissue are recommended to promote the healing process. Healing rates depend on pressure ulcer stage with approximately 59% of Stage III ulcers and 33% of Stage IV ulcers healing at 6 months. Thomas reports that as few as 13% of pressure ulcers heal within 2 weeks in acute care settings.

Failure to heal diabetic ulcers has been attributed to infection, tissue ischemia, ill-fitting shoes, and poor management. Standard treatment of diabetic ulcers consists of pressure offloading, correction of nutritional deficits, moist wound dressings, and sharp debridement to remove callus. Management principles also include treating infections and preparing the wound bed by topical applications. Brem et al add to these the need for optimal glucose control and the use of adjunctive therapies such as cell and/or cytokine therapy. However, the evidence supporting use of vigorous sharp debridement, enzymatic or autolytic debridement, iodine-based or silver-based antiseptics, and hyperbaric oxygen remains limited. Reported healing rates vary across studies. Piaggesi et al reported a 79% healing rate at 25 weeks after conventional treatment. In contrast, the healing rates in large multicenter trials are reported at 24% at 12 weeks and 31% at 20 weeks. This meta- analysis also concluded that wound duration, area, and size did not significantly affect the percentage of wounds healed at 20 weeks.

Discussion

This study examined subjects with 1 of 3 types of chronic ulcers to identify those factors that influenced the rate of healing, both timely healing (within 3 months of start of treatment), and nonhealing (after 5 to 6 months of treatment). The subjects, all more than 50 years old, were receiving wound care in a variety of settings with different constellations of staff members, care delivery processes and organization, and treatment preferences.
No strong relationship was found between most of the comorbid conditions and the healing outcomes. Diabetes, renal disease, cardiac disease, pulmonary disease, endocrine disorders, GI disease, blood disorders, neurological disease, and smoking were not associated with poor wound healing in the present study, while it was found that diagnoses of malnutrition, infection, CVA, and dementia were important. History of stroke and presence of cognitive impairment are likely to be related to poorer functional status and reduced activity levels, making healing more difficult to achieve. Nutritional status has been linked to the development of pressure ulcers, and is considered an important factor in successful healing of chronic wounds. Subjects who received nutritional support can be assumed to have poorer nutritional status and lowered healing capacity, and thus less ability to heal their wounds. Having more than one ulcer and being obese were both associated with healing within 3 months. These factors may have been associated with type of ulcer (venous), which was likely to heal faster than diabetic or pressure ulcers. However, further analyses showed that the percentage of obese patients was similar between diabetic and venous ulcer patients, and the percentage of subjects with more than 1 wound was similar between pressure and venous ulcer patients. Currently, the explanation to support these findings is uncertain.

It is not surprising that specific wound characteristics were associated with healing or nonhealing of chronic wounds. Larger, deeper wounds take longer to heal than shallow, smaller wounds. Although exudate type did not influence healing in the present study, amount of exudate was associated with both healing and nonhealing of wounds. A major focus of chronic wound care in recent years has been the development of dressings that promote a moist environment to assist healing. Wounds with moderate to large amounts of drainage require absorptive dressings while dry wounds require dressings that add or retain moisture. Recommended dressings include films, foams, hydrogels, hydrocolloids, alginates, and hydrofibers. Dressing materials differ in their properties of permeability and wound protection- understanding these differences is key to planning for wound management in individual patients. The many available dressing choices may confuse clinicians who are making these decisions. In addition to these moisture-management dressings, there are topical antiseptic agents being used with gauze, as well as antimicrobial dressings. Although rationale exists for use of these types of dressings, data are limited on their ability to enhance healing. The findings did not support their use, with antimicrobial dressings having a negative impact on healing within 3 months and a positive association with nonhealing after 5-6 months of treatment. Because of the possibility that use of antimicrobial dressings might be related to presence of infection, we conducted further analyses which revealed no association between presence of infection and use of these types of dressings. Greater use of moisture-management dressings in the first 3 months of treatment, and over all 6 months of treatment, reduced the chances of not healing. The use of moisture-management dressings is consistent with evidence-based recommendations. According to NICE35, moisture-management dressings create the optimum wound environment rather than gauze. Interestingly, the use of gauze dressings in the present study did not influence healing at either 3 or 6 months.

Debridement of the amorphous material from the wound bed of chronic ulcers has been used for many years to enhance healing, using surgical, sharp, autolytic, enzymatic or mechanical approaches. Although evidence supports the efficacy of debridement of chronic wounds, none of the specific approaches has gained universal acceptance.[

Debridement in the present study was associated with poorer healing outcomes. It may be partly due to the fact that necrotic debris increases the possibility of bacterial infection and delays wound healing. It may also reflect use of non-recommended approaches, inadequate skill, and inadvertent damage to healthy granulating tissue. Mechanical debridement is contraindicated because it is nondiscriminant, removing both healthy and dead tissue. As might be expected, the repeated use of mechanical debridement over time was found to be associated with the nonhealing of the chronic ulcers. Although widely recommended, it remains unclear whether wound debridement is a beneficial process that results in greater frequency of complete wound healing.

The literature has described the negative impact of wound infections or bacterial burden on wound healing. The authors of the present study were able to document the negative influence of infectious processes on healing as well. However, infection was not well documented in the medical records (very few cultures were performed), so infections were noted through documented signs of infection, identification of purulent drainage, and/or orders for systemic antibiotics. Ulcers that healed within 3 months had significantly fewer data collection points over these 3 months at which infections or potential infections were noted, while nonhealing ulcers had significantly more data collection points at which actual or potential infections were documented. We also found that greater use of systemic antibiotics was associated with nonhealing ulcers. This of course is correlated with the documentation of signs of infection and might also reflect more severe infectious processes. There is a possibility that antibiotics were overused in some cases.

The present study unexpectedly found that the use of a commercial cleansing agent as compared to water, normal saline, toxic agent, or no cleanser, was associated with faster healing. The use of specific cleansing agents varied significantly across sites of care delivery. The 2 sites with the most positive healing outcomes both used commercial cleansing agents, although for a rather small percentage of their subjects (14% and 9%), while neither of the other two sites with poor healing outcomes used any commercial agents. It is therefore difficult to sort out the independent effects of commercial cleansing agents from other site effects, and requires further investigation. The use of cytotoxic cleansing agents, such as Dakin's solution, acetic acid, and hydrogen peroxide, was associated with the nonhealing of wounds. As early as 1994, AHCPR clinical practice guidelines warned against using these cytotoxic cleansers, but their application persists to this day in spite of the evidence-based recommendations against their use.

This comes from the site "All American Patriots."

The U.S. Consumer Product Safety Commission and the National Highway Traffic Safety Administration (NHTSA), in cooperation with Evenflo Company Inc., today announced a recall of the following consumer product. (To access color photos of the following recalled products, see CPSC's Web site at www.cpsc.gov.)

Name of Product: Evenflo Embrace Infant Car Seat/Carriers.

Units: About 450,000

Manufacturer: Evenflo Company Inc., of Vandalia, Ohio

Hazard: When used as an infant carrier, the handle can unexpectedly release, causing the seat to rotate forward. When this happens, an infant inside the carrier can fall to the ground and suffer serious injuries.

Incidents/Injuries: Evenflo has received 679 reports of the handle on the car seat/carriers unexpectedly releasing, resulting in 160 injuries to children. These reports include a skull fracture, two concussions, cuts, scrapes and bruises.

Description: The recall involves Evenflo Embrace Infant Car Seat/Carriers made before April 8, 2006. The recalled car seat/carriers have model numbers beginning with 317, 320, 397, 398, 540, 548, 549, 550, 556, 597, 598 or 599. The model number and production date information can be found on a white label on the bottom of the carrier and on the top of the convenience base. Models beginning with "5" are units sold with the travel system (compatible stroller). "Evenflo" is on the carrying handle and car seat base. Embrace infant car seat/carriers made on or after April 8, 2006, are not included in this recall.

Sold at: Department and juvenile products stores nationwide sold the car seat/carriers from December 2004 through September 2006 for between $70 and $100 when sold alone and between $140 and $200 when sold with a compatible stroller.

Manufactured in: United States and China

Remedy: Consumers should not use the handle until the repair kit has been installed. The product can continue to be used as a car seat when secured in a vehicle. Contact Evenflo to receive a free repair kit that strengthens the handle latch. Recall notice will be sent to all registered owners of the recalled product. The recalled units should not be returned to the retailer.

Customer Contact: For additional information, contact Evenflo at (800) 490-7497 between 8 a.m. and 5 p.m. ET Monday through Friday or visit the recall Web site at www.embracehandle.com.

As I've pointed out many times now, there is a one-year statute of limitations in many Nevada medical malpractice cases.

This means that if you request your medical records from your doctor, you should not let your doctor's office delay provision of records for more than a week or two.

Undue delay in obtaining records could compromise your ability to bring your case.

If you have problems getting your medical records, contact an attorney. Time is of the essence in Nevada medical malpractice cases.

A judge in Washington, DC has sued a dry cleaning business for $67 million dollars because it lost his pants.

Stupid lawsuits like this do much to tarnish the good work of America's trial bar.

Needless to say, media outlets, many of which are more concerned with American Idol, Anna Nicole Smith and other "non-news," love this sort of story because it's a story that they incorrectly use to bolster the incorrect notion that "the System's" out of control. There's a market in America for news that's more entertainment, or distraction, than substance.

This is obviously a frivilous suit and will be condemned by trial lawyers across the nation for what it is.

Absurd and aberrational suits like this threaten those victims who are truly wronged and deserve justice. It's a waste and a shame.