First Amendment Does NOT Protect Doggie Murals in Arlington, VA!

As a dog owner, and an Arlington, Virginia resident, this one hits close to home.  A federal appeals court has upheld a lower court's decision banning a doggie mural in Arlington County.  The mural must stay in the doghouse!

Wag More Dogs, a local doggie day care center, commissioned a large mural on its building that faced a local dog park.  The sign depicted "happy cartoon dogs, bones, and paw prints" and included the name of the business.  (Admission: I have seen the mural and think its great.).  But then the Arlington County's Zone Administrator took a look at it.  Melinda Artman (I did not make up that name) told Wag More that the mural was an advertisement for the Wag More business and did not comply with Arlington's sign regulations.  One of the "solutions" offered by Artman was that Wag More could cover the sign up with tarps (really attractive!), which is what Wag More agreed to do while they fought the battle out in court.

Wag More argued that the Arlington regulation violated their First Amendment rights by banning free speech.  The trial judge smacked that argument down, finding that the regulation was "content neutral," and that the regulation satisfied "intermediate scrutiny."

Law explanation coming:  Generally speaking, regulations that are "content neutral" are those that place limits on speech/signs but not by focusing on specific speech/specific signs.  For example, a regulation that limits all business signs to 3 x 5 feet is content neutral, while a regulation that limits signs only for car dealers to 3 x 5 feet is probably not content neutral because it discriminates among types of speech.

Once a regulation has been determined to be "content neutral," the court then determines whether it survives "intermediate scrutiny."  A content-neutral regulation passes intermediate scrutiny (and is constitutional) if "it furthers a substantial government interest, is narrowly tailored to further that interest, and leaves open alternative channels of communication."

Both the trial court and the appeals court found that Arlington's regulation easily survived intermediate scrutiny because, among other things, it allows Wag More Dogs to post smaller signs or murals.  The case is called Wag More Dogs, Ltd. v. Cozart, No. 11-1226 (4th Cir. 2012).

Translation:  unless they go to the Supreme Court (unlikely), no doggie mural in Arlington.

Your Daily Coffee Regimen -- Keeping you Healthy?

Scientists and physicians have long debated whether coffee helps, or hurts, your longtime health.  In the May 17, 2012 New England Journal of Medicine ("NEJM"), the coffee drinkers get a pass.  The Study bears a title that only the a medical journal could endorse:  "Association of Coffee Drinking With Total And Cause-Specific Mortality."

The authors studied the association of death and coffee drinking among 402,000 people.  It concluded that coffee consumption was "inversely associated" with "total and cause-specific mortality."  Translation:  coffee drinking was not linked to a higher rate of death.  The lack of a correlation was most specific with heart disease, respiratory disease, stroke, diabetes and infection.  While the study cautions that scientists cannot be sure of the lack of a link, it speculates that the many antioxidants in coffee might be helpful in promoting long-term health.  Though cautioning over-reliance, the study concludes that "our reliance provides reassurance with respect to the concern that coffee drinking might adversely affect health."

Chalk one up for the coffee drinkers!

Do Not File a D.C. Medical Malpractice Case on the 89th or 91st Day!

When the D.C. Council passed a medical malpractice reform law in 2006, it created a new procedural hurdle to filing a lawsuit that has had unintended consequences.  Case in point:  the D.C. Court of Appeals' recent decision throwing out a medical malpractice case based on the hurdle.

The D.C. Council had laudable goals when it enacted a law that required patients to give health-care providers 90 days' notice before filing a lawsuit against them (the "90-Day Rule").  D.C. Code 16-2802.  In theory, this would allow the health-care providers' insurance companies the ability to review a case and resolve it without a lawsuit, promoting early settlements.  In practice, it has not fostered settlements as insurance companies routinely claim that they do not have sufficient information with which to resolve the case within the 90 day window.

Worse, it has put certain patients in a situation where they must file their lawsuit one one specific day or risk having the case thrown out.  It works like this:

In the District of Columbia, a patient generally has three years to file a lawsuit based on medical negligence (called the "statute of limitations").  (There are some exceptions, not relevant here).  Prior to enactment of the 90-Day Rule, the patient's lawsuit could be filed on any day within that three-year period.  Since enactment of the 90-Day Rule,  if a patient comes to a lawyer and there is still plenty of time left on the statute of limitations, the lawyer simply issues the 90-day notice letter to the health-care provider and then files the lawsuit anytime after 90 days, but before the three-year statute of limitation.  No problem.

What happens, however, when the client comes to the lawyer with less than 90 days left to file a lawsuit?  How can the lawyer comply with both the 90-Day Rule and the three-year statute of limitation?  Well, the D.C. Council dealt with that issue by extending the statute of limitations in those circumstances to "90 days from the date of service of the [90-day] notice."  D.C. Code 16-2803.  Problem solved, right?  Well, yes, but think of the situation that the patient is now in.  The law forbids the patient from filing the lawsuit until 90 days has elapsed from service of the letter, but at the same time, it only extends the statute of limitation for 90 days.  The result?  The patient now has only one day on which to file the law suit:  the 90th day.  If it is filed on the 89th day, it has been filed too soon because 90 days has not elapsed.  If it is filed on the 91st day, it has been filed too late because 91 days have elapsed.

Sure enough, the D.C. Court of Appeals (its highest court) recently ruled that a medical malpractice case filed on the 91st day is untimely.  In Atiba v. Washington Hospital Center, CAM-480-10 (May 17, 2012), the Court rejected the patient's argument that the law was unclear.  The Court noted the conundrum the patient faced:  "It may be true that filing the complaint on any day prior to [the 90th day] would have violated the 90-day notice requirement . . . and any date after [the 90th day]was untimely.  However, this court has previously noted that such an interpretation of the statute is not unreasonable."

Long-Lost Relatives Must Be Named in Maryland Wrongful Death Suits

When a family member dies as a result of someone else's negligence, the law provides a remedy in the form of a wrongful-death lawsuit.  A wrongful-death lawsuit is designed to compensate close family members for their loss.  In Maryland (like other States), the family members who are entitled to recover are defined by law.  The persons entitled to recover are generally the spouse, children and parents of the decedent.  See Md. Code Cts. & Jud. Proc. 3-904. 

Maryland's wrongful-death law not only allows these family members to bring an action, but it also requires that they be named as plaintiffs in the action.  Maryland's highest court recently confirmed that even long-lost relatives (who fit within the statute) must be named in the suit.  The case, called University of Maryland Medical System Corporation v. Muti, 2012 MD LEXIS 269 (2012), provides a cautionary tale for today's complex family structures.

Mr. Muti died in 2005 as a result of alleged medical malpractice.  His wife and two adult sons (the "Muti Family") filed a wrongful-death lawsuit against the medical providers.  The Muti Family was aware that Mr. Muti had been married previously and had adopted a son, Ricky, during the first marriage.  But neither Mr. Muti nor the Muti Family had any contact with Ricky for 30 years.  Having had no contact with Ricky for 30 years, and not knowing where he was, the Muti Family did not identify Ricky as a plaintiff in the case.  When the Muti Family's failure to identify Ricky as a plaintiff was discovered, the trial court dismissed the entire case.

On appeal, Maryland's highest court ruled that even though no one knew of Ricky's whereabouts, or whether he was still alive, the Muti Family was required to identify him as a "Use Plaintiff" in the lawsuit.  "Use Plaintiffs" are essentially placeholders; when you know that a potential plaintiff exists, but you do not represent him/her or know of his/her whereabouts, you still must identify the person as a "Use Plaintiff" when you file the lawsuit so that the Court and the defendants are aware of this fact. 

While the appellate court thought this dismissal of the entire case was too harsh, it did reiterate that all known "Use Plaintiffs" must be named when a wrongful-death case is filed.

Word to the wise:  keep track of long-lost relatives!

Does Settling with a Negligent Employee (Agent) Prohibit You From Pursuing His Employer (Principal)?

Admittedly, this post veers a bit into nerdy legal speak.  But it discusses an important evolving issue in the law that affects many people.  In legal speak, it is principal/agent liability. Here is a plain-English example of how it arises:  a truck driver is an employer of a major corporation.  The employee runs a red light and t-bones a car, injuring a passenger. The passenger's medical bills total $250,000.00.  The passenger sues the employee (referred to as the agent) and the major corporation/employer (referred to as the principal) for negligence.  The agent only has $25,000.00 in insurance and wants to resolve the claim by paying the $25,000.00 policy.  But the principal refuses to pay anything and wants to go to trial.  Shouldn't the injured passenger be allowed to settle with the agent (allowing the injured passenger to obtain some compensation while allowing the agent to buy his peace) and still be able to pursue the principal?

Traditionally, the law has prohibited this, and most jurisdictions still prohibit it.  Based on English common law (where our justice system comes from), if you settle with the agent, you automatically release the principal as well. 

This puts both the injured passenger and the agent in a difficult situation.  In our example, the injured passenger is unlikely to give up his entire $250,000.00 claim in exchange for the agent's $25,000.00 policy.  Meanwhile, the agent -- who is trying to do the right thing by paying his full insurance policy -- is prevented from doing so, and is forced to go to court where he may be held personally liable for the difference.  Finally, the principal gets off scot-free.

Our firm challenged this antiquated rule in the District of Columbia in 2009, and won.  In a case called Convit v. Wilson, 980 A.2d 1104 (D.C. 2009), D.C.'s highest court found that this old tenet could no longer withstand scrutiny.  In doing so, the Court conducted a near-50-State survey to determine the positions of the States on this issue.  The Court found that more and more States are adopting the modern rule, recognizing that it fosters the important goal of settlement.

My prediction is that more States will continue to adopt the modern rule as they confront this difficult issue.

Military Medical Malpractice .....A Unique Area Of The Law

Long ago, the U.S. Supreme Court held that active duty service members could not sue for medical malpractice that occurred to them while in a military hospital.  Referred to as the Feres Doctrine (based on the name of the case), it has long been criticized but is still the law.  See Feres v. United States, 340 U.S. 135 (1950).

But the Feres Doctrine does not prohibit non-military family members from suing for medical malpractice that occurs in a military health system.  This often arises when medical malpractice occurs during childbirth where the mother is married to an active military member and receives her medical care in a military hospital.  In that scenario, the mom and injured baby do have a claim (the "Claim").

The Claim, however, is no ordinary claim.  Rather, it is governed by a special federal law, full of traps for the inexperienced attorney.  The Federal Tort Claims Act (FTCA) places special limitations and requirements on such claims.  While this blog post is not meant to be exhaustive, I highlight some of the procedural requirements.  First, the claim must be "presented" to the appropriate government institution within 2 years.  28 U.S.C. 2401(b).  This is done by preparing a form called an SF-95.  The SF-95 must be carefully and fully prepared or you risk voiding the Claim.  Moreover, where to "present" the claim can be tricky -- and "presenting" it to the wrong governmental agency can void the claim.  See Cronauer v. U.S., 394 F. Supp. 2d 93 (D. D.C. 2005) (failure to send SF-95 to the correct agency does not extend the 2-year statute of limitations).  There is even a question whether "mailing" constitutes "presentment."  See Drazan v. United States, 762 F.2d 56 (7th Cir. 1985).  In addition, you must ask for a specific dollar amount of damages.  See Richland-Lexington Airport District v. Atlas Properties, Inc., 854 F. Supp. 400 (D. S.C. 1994) (asking for "compensation for any damages caused" is not sufficient).  And the FTCA prohibits you from asking for greater damages if you later file suit.  28 U.S.C. 2675(b).

Once you have successfully presented the claim, you are not allowed to file a law suit for 6 months after presentation or, until 6 months after the appropriate agency denies the claim.  28 U.S.C. 2401(b).  Once that time period has elapsed you may file a lawsuit in one of two places:  the federal court where the injury occurred, or the federal court where the military member lives. 

Unlike regular medical malpractice cases, which are ordinarily decided by juries, the FTCA requires that the Claim be decided by a federal judge.  28 U.S.C. 2402.  The federal judge ordinarily will use the medical malpractice law of the state where the injury occurred.  Punitive damages are not allowed, 28 U.S.C. 2674, and the attorney's fee is limited to 20% if the case settles before filing suit, and 25% if the case is resolved after a lawsuit is filed.  28 U.S.C. 2678.

This is a very brief overview of the procedural thicket involved in prosecuting military medical malpractice cases.  One thing is for sure:  this is not a field of law for the unwary!
 

Does the "Everyone Does It" Defense Get A Negligent Party Off the Hook?

A car is manufactured without an airbag.  A community pool is not staffed with important safety equipment.  A rowing club fails to provide life preservers to its members.  As a result of these failures, someone is catastrophically injured or, worse, dies.  A lawsuit is filed and the car manufacturer, pool owner, or boat owner claims that they did nothing wrong because "most" actors in the industry do it that way, i.e., most car manufacturers do not provide airbags, most pool owners do not provide safety equipment, most boating clubs do not provide life preservers.

Are they off the hook?  The answer is: not necessarily.   This raises the issue of the "standard of care."  In a personal-injury lawsuit, the injured party (plaintiff) will have to prove that the allegedly negligent party (defendant) did not act within the "ordinary custom and practice" of the relevant field.  Put another way, the plaintiff must prove that the defendant did not act as an "ordinary person" would have under the circumstances.

So isn't the "ordinary person" standard defined by what the majority of persons in the industry do?  Well, it may be, but it may not be.  What if an entire industry is behind the times?  What if an entire industry refuses to adopt new safety standards because they do not want to pay for it?

This is not a new issue in the law.  In fact, in 1997, the highest court in the District of Columbia recognized that "the fact that some or most persons who are in a position similar to the defendant fail to act reasonably and prudently does not absolve the defendant of liability."  Ray v. American National Red Cross, 696 A.2d 399 (D.C. 1997).  While the defendant is allowed to produce evidence that he acted with the majority and thus, was not negligent, the plaintiff is, likewise, allowed to show that the "majority rule" is old, out of date, or behind the times.  It is then up to the jury to decide -- as our Founding Fathers enshrined in the Seventh Amendment -- who is correct.

A similar argument is often made where a law is missing.  For instance, the allegedly negligent actor claims he is not negligent because "no law required me to have the missing safety equipment."  The answer to that question.....so what?  Do we really think that legislators have the time time pass up-to-date safety laws in every area of commerce?  Are they free from lobbying influences that might prevent them from passing an important safety rule?

Of course not.  And that is why the jury system is so terrific.  It is the one area where ordinary citizens -- free from influence and with full power -- are allowed to make commonsense decisions.

Can A Parent Sue For the Wrongful Death of an Unborn Child?

          A sad, and perplexing legal quandary long has existed when someone’s negligence causes the death of an unborn baby, i.e. a fetus.  Whether the fetus dies in a car accident, through medical malpractice, or some other negligence, the issue of whether the family can file a wrongful-death suit has been hotly debated.  The issue is a particularly sensitive one because it deals with the controversial question of “when life begins.”  Since wrongful-death claims only apply to “persons,” the question is whether a fetus is a person.

            With the April 2012 passing of a new law in Virginia, Va. Code § 8.01-50B, all three local jurisdictions (including Maryland and the District of Columbia) now recognize some form of action, although they take different approaches to when it arises.

            Until 2012, Virginia – long, the most conservative of the three jurisdictions -- did not recognize wrongful-death claims for fetuses.  This was at odds with Virginia’s strong pro-life component, which defines a “person” as existing at conception.  How could Virginia argue, on the one hand, that a fetus was a “person” when it came to women’s health care, but argue, on the other hand, that a fetus was not a person when it came to civil lawsuits?  Although no real legitimate argument could be made to explain this discrepancy, Virginia’s General Assembly recently decided to resolve the conundrum.

            A bill recently signed into law by Governor McDonnell creates a cause of action for the wrongful death of a fetus.  The action must be brought by the natural mother (or an administrator if the mother cannot) and allows the family to recover damages.  Importantly, the law appears to allow a fetal wrongful-death claim regardless of the age of the fetus.  In other words, it appears that a wrongful-death claim would exist for a 2-week old fetus despite the fact that the fetus was not yet viable outside of the womb.

            The viability question is an important one because Maryland and the District of Columbia have both reached a different result on when the claim exists.  While both jurisdictions allow fetal wrongful-death claims, the claim can only arises if the fetus was viable outside of the womb when the death occurred.  See Greater Southeast Community Hospital, 482 A.2d 394 (D.C. 1984); Kandel v. White, 663 A.2d 1264 (Md. 1995).  If the fetus was not viable, then no wrongful-death claim arises.

Thus, in Maryland and D.C., the wrongful-death claim only arises late in the pregnancy.  While under the new Virginia law, it appears that a fetal wrongful-death claim exists from conception.

Private Citizens Have the Power to Expose, and Collect Damages For, Medicare Fraud

It would be difficult to read a newspaper today without running across an article about how often the government -- i.e., us taxpayers -- is defrauded by improper Medicare payments.  But one of the most pervasive frauds may not be obvious.  Here is how it occurs:  A person/company injures (the “Wrongdoer”) another through negligence.  For instance a commercial trucker runs a red light and causes catastrophic injuries when he T-bones a vehicle.  The catastrophically-injured person is on Medicare.  Thus, Medicare foots his bill for his injuries, which can easily excess $1 million. Shouldn't the Wrongdoer be required to pay back Medicare given that his negligence caused the need for the payments?  The answer is not only morally "yes," but it is also required by federal law.  

Often, however, the Wrongdoer  compensates the injured person via insurance, but the insurer then "forgets" to pay Medicare back.  And given all of the other Medicare fraud out there, the Government hardly has the resources to police it all.  So Congress has passed an important, but often overlooked, law that allows private citizens to sue these Medicare fraudsters, and recover double damages. 

The law is buried in a section of the Federal Code called "Exclusions from coverage and medicare as secondary payer."   (Really, where do they come up with these names?) If you do not think that title is obvious, how about we refer to the section of the Code: 42 U.S.C. 1395y(b)(3)(A).  (This is real!)  Okay, that won't work either, so how about we call it the "Private Fraud Action."

The Private Fraud Action works like this:  Congress recognized that the person most likely to be aware of this fraud is the injured person who receives an insurance payment.  Thus, the law allows the injured person to sue the fraudster in federal court and recover double damages – twice the amount that the fraudster should have paid back to Medicare.  

Interestingly, several courts have held that the damages go the injured party, not to the government.  For example in Woods v. Empire Health Choice, Inc., 574 F.3d 92 (2d Cir. 2009), the Court noted that "following a successful action, the victorious party will keep the entirety of any recovery."  While this may seem at odds with the law's purpose, presumably it is meant to encourage private citizens to deter fraudsters.

Virginia Supreme Court Says Parents Can Sue For Interfering With Parental RIghts

            Do not mess with Virginia parents!  That is the message from a recent Virginia Supreme Court opinion recognizing a parent’s right to sue third parties who intentionally interfere with the parent-child relationship.  The claim is officially called “tortious interference with parental rights,” and was found to exist in Wyatt v. McDermott, 2012 Va. LEXIS 92 (2012). 

            As the Supreme Court wrote, the allegations in the case are “astonishing and profoundly disturbing.”  But they explain how this claim works. The unmarried father, John Wyatt, alleged that he and the baby’s mother had agreed to raise the child together.  Wyatt alleged, however, that  without his knowledge, (1) the mother retained an attorney to arrange for an adoption; (2) that the mother’s attorney worked with the mother to keep Wyatt “in the dark” about the adoption; (3) that they hid the birth from him; and (4) that the baby was ultimately adopted by a Utah couple without Wyatt’s knowledge.  Wyatt sued the adoption attorneys in Virginia and Utah, the adoption agency (and an employee), and the adoptive parents .  He sought damages for the “unauthorized adoption.”

            The 4-3 decision was hotly contested by the Justices in an argument about judicial activism.  The majority found that the claim had its roots in English common law going back to 1599.  Thus, the majority argued that it was not “legislating from the bench” by recognizing the claim.  It pointed out that most state high courts that have considered the issue have agreed that the claim exists.  The dissent argued that the “decision of whether to create such a cause of action should be left to the legislature.”

            But the majority ruled the day, and the claim now exists in Virginia.  The elements of the claim are: (1) a parental relationship with the minor; (2) that a third party intentionally interfered with; (3) which interference caused harm; and (4) damages.  The Court found that damages include not only the cost of securing the parent’s rights, but also the mental anguish and lost companionship.

What Is My Case Worth? Check Your Zip Code.

If you ask most people how they feel about “tort reform,” most will offer an opinion: good or bad. My goal is not to convince you one way or another, but rather to inform you of how tort reform really works in practice.  I will leave it you to make a decision as to whether tort reform is good, bad, or, more important, consistent with justice meted our fairly.

Tort reform generally refers to one thing: caps on damages.  Put another way, it is an arbitrary legislative limit in personal-injury lawsuits imposed without regard to the degree of the loss.The best way to show you how caps on damages work, and the strange outcomes that result, is to look at the same accident, and the same injury in three different abutting  states/jurisdictions.  Let’s look at the same case that is tried to a jury in Maryland, Virginia and the District of Columbia.                                       

 “Dad,” a father of three children, is on his way home from work when his car is struck by a physician’s car.  The physician, after a long night at the hospital, runs a red light.  Dad survives the accident, but suffers a severe brain injury, such that he can no longer earn a living.  Prior to the accident, Dad earned $150,000 per year as an executive. It is agreed that Dad would have earned $2.5 million over his lifetime to support his family, send his kids to college, etc.  Let’s also assume that Dad is in tremendous pain from his injuries, and that this pain cannot be alleviated.  Thus, he will live with this pain every day for the rest of his life, and he will never be able to meaningfully interact with his kids again.

            The case goes to trial on the same day in Maryland, D.C. and Virginia.  All three juries award Dad his full economic loss of $2.5 million, and all three juries award Dad $1 million for his pain, suffering, and the loss of enjoyment of life, for a total award of $3.5 million.  (By the way, if this sounds like a lot to you, ask whether you would take $3.5 million to be in Dad’s position?)

            So in all three jurisdictions, Dad collects $3.5 million, right?  Well, not so fast.  In Virginia and in D.C., you would be correct that Dad is entitled to his full recovery.  That is because neither D.C., nor Virginia, have legislatively limited damages in (non-medical malpractice) personal-injury cases.  Maryland, however, has enacted a legislative limit on the pain and suffering component of damages.  Thus, the $1 million the jury awarded will be legislatively limited to $770,000.00 once the jury leaves the courtroom.  If you want to read the law, look at Md. Courts & Jud. Proc. §11-308.

            So far, here is the result.  If Dad is struck by the tired physician on the Virginia border, he recovers $3.5 million.  If he is struck on the D.C. side, he recovers $3.5 million.  If he is struck on the Maryland side, he recovers $3,270,000.00.

            A bit strange, but as they say, you “ain’t seen nothing yet.”

            Now let’s take the same injury to Dad, caused by the same physician, but instead the physician causes the injury during surgery.  You would think the recovery would be the same, given that the injury is the same, right?  Wrong.

            In medical malpractice cases only, Virginia has enacted a special cap on damages.  That cap limits all patients in Virginia to no more than a $2 million recovery.  The cap is inclusive, meaning it limits both Dad’s financial loss and his pain and suffering loss.  (The law is Va. Code §8.01-581.15).   So in Virginia, if Dad is struck by the physician in the car, he recovers his full loss, $3.5 million.  If the physician causes the same injury to Dad but in a medical setting, Dad recovers $2 million. 

            Now we turn to Maryland.  If you are assuming that the Maryland cap we already discussed will limit Dad’s damages, you are only partially correct.  While Maryland does cap the pain and suffering component of medical-malpractice awards, just like it caps personal-injury awards, it caps them at a lower amount.  Thus, while the pain and suffering cap if Dad is struck by the physician’s car is $770,000, the pain and suffering cap, if the physician causes the injury in the medical setting is $710,000.00.  Thus, Dad’s total recovery in the Maryland medical malpractice case is $3,210,00.00.  If you want to read the separate Maryland malpractice cap, go to Md. Code Cts. & Jud. Proc. § 3-2A-09.

            Finally, we come to the District of Columbia, which is easy.  The District does not legislatively limit jury awards, trusting its citizens to set the amount (with oversight by the trial judge), as enshrined in our Constitution.  Thus, in D.C., Dad recovers his full $3.5 million loss for the medical malpractice injury.

            In case your head is spinning by now, below is an easy reference chart for you:

            Same accident, same losses totaling $3.5 million           

           

            Recovery in:                 Automobile Injury                     Medical Malpractice Injury

            Washington, DC           $3.5 million                               $3.5 million

            Virginia                         $3.5 million                               $2.0 million

            Maryland                      $3.27 million                             $3.21 million

            So the next time someone asks you about tort reform, before answering whether you support it, make sure you know what zip code you are standing in!