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Author: Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.

Dan Frith is named to 2019 Virginia Law Foundation

January 20, 2019

Founding partner of Frith Ellerman & Davis will be inducted into the Virginia Law Foundation next week, at the Virginia Bar Association’s Annual Meeting. 

We are so proud of Dan’s induction as the Law Foundation only selects attorneys who are dedicated to their practice, and communities. 

Join us in congratulating Dan on this well deserved honor! 

How to be a better patient – and get better medical care in Virginia

December 30, 2018

This week I was enjoying some post holiday magazine reading time, when I saw a blurb in Better Homes and Gardens, that said: 

On average, doctors will interrupt 11 seconds after you start explaining your symptoms. 

The magazine then advises, to “write down the issues you want to discuss in order of importance and give it to the doc at the start of the visit.”

Well I think that is excellent advice. But I will go one step further. If you feel your symptoms were not fully addresses, follow up. Use the MyChart system provided by your doctor or hospital to communicate your concerns in writing, or ask for the list to be included as part of your chart – or send a fax to the practice with an update. 

In today’s world of electronic medical records, often clicks are made in your chart that DO NOT accurately reflect your health, questions etc. 

Good advice BHG – being an advocate for yourself almost always leads to better care. 

Why your worst nightmare is a “good case” under Virginia law, and why that is so wrong

December 30, 2018

Sadly, in our office, when someone says – “That’s a good case,” some awful unspeakable tragedy has occurred to someone in Western Virginia. 

The list of tragedies is unfortunately very long: 

  • someone lost a loved one
  • a child has died or suffered a life changing injury
  • a professional lost his or her job because they couldn’t work anymore
  • someone has spent months in a hospital and the bills are stacking up
  • a parent has died because of neglect or abuse at a long term care facility
  • a pharmacy has mixed up medications
  • a physician didn’t read the full medication list and prescribed a lethal combination of pills 
  • a surgeon didn’t appreciate the nuance of this procedure and caused significant injury
  • a cancer was missed and went untreated

If someone calls our office, and there might be bad or negligent medical care from a nurse, doctor, nursing home, hospital system, a clear and preventable mistake – but that person has recovered fully and or the injury was short lived, we often say – “Yes, you may have a case but it is not going to benefit you financially so we don’t recommend you file suit.”

So why is a life changing injury a good case, and a short term one – not worth filing?

Sadly, the law and the money make it so. 

In order to file a malpractice or negligence lawsuit in Virginia, you must have experts who have signed affidavits before the lawsuit is formally served. The experts must review medical records, and they almost always charge a pretty penny for their time (and who can blame them – they have skills, and limited time just like the rest of us) so filing a lawsuit can be very expensive. 

Here is an idea of what it might cost to file a malpractice lawsuit in Virginia:

 

Request Records$200 for records on paper and discs
Expert review for negligence$2,000 – $5,000
Expert review for causation $2,000 – $5,000
Expert to discuss job loss and decline in function$3,000 – $10,000
Court reporter costs throughout case$5,000 – $10,000
Expert costs as case continues$20,000 – $40,000
Trial prep, exhibits Etc. $5,000
Filing the lawsuit$250

A single case could easily cost $20,000 – $50,000 in costs – and that does NOT include attorneys fees which in Virginia, is almost always 40% for Medical Malpractice and 33% for personal injury. 

So if you missed a week of work, had $5,000 in unpaid medical bills – would it be worth all of the above costs and expenses to file suit?

In the words of my daughter’s favorite book character – Pete the Cat – “Goodness No.”

So one must suffer a financial harm and injury so great, that it justifies significant outlay of costs in litigation. 

So a “good case” to the lawyers, one worth 1-2 years of time and effort, is usually one with high lost wages, high medical bills, or significant suffering. 

Doesn’t that sound awful?

Of course it does.

And it sounds awful to say it and think it daily at work. Often I will tell clients – “be grateful you don’t have a lawsuit. Recovering from your injury, being a whole person again, not losing your job is all much better than having a lawsuit.”

Should there be a less formal way for victims of neglect or malpractice to bring claims that doesn’t cost so much? Maybe.

Does such a way exist right now under Virginia law? Not really. 

And so we exist in a state where the most significantly injured have life altering tragedy, and maybe some access to “justice” that costs them thousands and thousands of dollars in costs and attorneys fees, and will take years to get.

Doesn’t seem that just to me. Seems rather bleak. 

Frith Ellerman & Davis attorneys – asked to lead the way

December 30, 2018

Early in 2019, our three named partners will all be teaching other lawyers how to handle injury cases. 

Lauren Davis and myself (Lauren Ellerman) will be teaching at the Virginia Trial Lawyers Retreat on Long Term Care cases, and our partner Dan Frith will be teaching at the Virginia Trial Lawyers Premises Liability Retreat. 

Why does this matter?

When you go to a doctor, you want to find someone who specializes in your complaint. 

When you call the plumber – you want someone who knows your type of problem. 

When you suffer a serious injury caused by someone else’s negligence – you want an attorney who has handled that kind of case, and is so experienced in that area of law, he or she is teaching other lawyers about it. 

Virginia Business Legal Elite – 2019 – 3 Frith Ellerman & Davis Attorneys Chosen

December 5, 2018

I am proud to announce that Virginia Business Magazine has selected our attorneys for their top honor – Legal Elite.

My partner Dan Frith was selected for Legal Elite – Business Litigation (Non-compete litigation). 

My colleague Bo Frith was selected as Legal Elite – Young Lawyer (and I think was the only young lawyer recognized who works for a small firm helping patients and not corporations).

And I (Lauren Ellerman) was selected as Legal Elite for Health Law – or, Medical Malpractice.

We appreciate the thoughtfulness of our colleagues who nominated us, and Virginia Business for this selection. 

Why words matter in Nursing Home Contracts

December 5, 2018

If you were a Fox News fan in the early days (or just a general consumer of news and media) no doubt the name and face of Gretchen Carlson rings a bell. She was one of the network’s early stars – smart, attractive and often on screen discussing the difficult news of the day.

In 2016, she publicly revealed she had been sexually harassed and threatened by the station’s owner Roger Ailes for years during her employment. 

So what does Gretchen Carlson’s work place harassment have to do with Virginia Nursing Homes you may be asking? (And it’s a good question by the way). 

The answer is forced Arbitration. 

When Carlson signed her employment contract with Fox News she agreed that any allegations of discrimination, breaches of contract etc – would be handled in a super secret process called Arbitration and not in her local state or federal court system. 

The same language appears in almost every contract Virginia families are asked to sign with assisted living facilities, nursing homes, home health and other levels of retirement care. 

So what are these contractual provisions and why do they matter? 

  1. The provisions are typically one sided. If you refuse to pay your bill, or perform under the agreement – the Company keeps the right to sue you. But if they kill your Mom by neglecting her, allow her to fall from a Hoyer lift, choke on her meal, or develop a pressure ulcer – you are not allowed to sue.
  2. For a consumer (that’s you and me) to initiate arbitration it is often 5-10 times  more expensive than filing a lawsuit in your local court. And the companies love this – because the more expensive something is for the consumer, the less likely they are to pursue it. Why is it expensive? Because the judges in your County Courthouse are paid by tax dollars – and arbitration companies and Arbitrators (the fake judges*) are paid by the hour – by you and your client! So there is a big difference between $250 to file a suit in state court, and $5,000 to file in arbitration plus $200 an hour for the judges time.
  3. Arbitration is secret – which means, whatever bad thing the company did, you can’t talk about it or tell others. Further, if the company has resolved a hundred similar claims just like yours in Arbitration, you have no idea and can’t hold the company responsible for patterns of negligence. 
  4. Arbitration doesn’t have clear rules of exchanging information. In state and federal court – every party knows what information must be shared during a process called discovery. In arbitration – this is often undefined, limited or worse – so unclear the parties remain confused as to what information they are entitled on getting. 
  5. In arbitration – one person decides the fate of your case (sometimes 3 if a panel is agreed to – but that means you are paying three people to hear your case $$$$$ !)

THE ONLY and I mean ONLY benefit I see in sometimes arbitrating cases, is that the process can be quicker than a state or federal court process which usually takes a year or longer.

So why does the nursing home / Fox news or other large corporation include these in their written contracts? One simple reason – they benefit the company and not the consumer or employee. And big business knows this. Currently huge industries are lobbying congress to keep these provisions in contracts so that we the people no longer have direct access to our local court system.y hope (and I am an optimist) is that some Congress in my lifetime will have the guts to put people first again and end forced arbitration. 

The road is long – but not bleak to end forced arbitration.

A side note – in Virginia, even if you do sign one of these – all is not lost. The law allows you 60 days after the healthcare ends or the person’s personal representative qualifies in Court on the Estate to revoke the arbitration agreement. Virginia Code 8.01-581.12. Sadly, the same right to revocation does not exist in employment contracts or other consumer contracts – but at least it’s a start. 

If you are someone who cares about equality – about people have the same rights as big business – about someone who believes our justice system should be accessible to everyone – call your State and Federal representatives and complain about arbitration agreements. 

Confidentiality = Secrecy

October 23, 2018

Last week I spoke to a woman who in my experience, likely has a malpractice case against a Virginia surgeon. She asked if there had been prior lawsuits against the surgeon and I told her that in fact I personally knew of four. 

She was shocked. She had spent significant time researching the doctor’s reputation online, including a review of his Board of Medicine profile. The profile however, said nothing about four lawsuits (with similar injuries to the one she suffered) and she couldn’t understand how they had been kept quiet. Hadn’t the Board of Medicine been updated on this doctor’s bad outcomes and weren’t they aware of the lawsuits and settlements?

Wasn’t there a rule – bad doctors lose their license? If you get sued a lot – they take it away?

In a word, no.

Most likely – settlement of the lawsuits each came with confidentiality clauses that stated the family would:

  • Not mention the lawsuit or settlement to anyone but their attorneys and tax advisers
  • Not report the settlement to local media
  • Not report the settlement to anyone else 

This means, almost all lawsuits that are settled are done so with little to no public record that the average person can find online. Even a skilled investigator would have to know where to look (and often visit a court house or two) to determine whether valid claims were settled in the past by a doctor or hospital. Also, it was likely the doctor was dropped from the lawsuit last minute through what is called a Non-Suit, so he/she didn’t have to tell the Bd. of Medicine about the claim. 

So why all this secrecy?

Exactly the reason you can imagine. 

Doctors and hospitals don’t want people to know when their doctors make mistakes and money is paid. They don’t want the bad press, and the likely consumer response which may be to find a different doctor. 

Most towns have a few horrible tales of doctor Z who has been sued 7 times, or doctor Y who can barely get insurance – but those stories are not covered by the media, or reported to the Bd. of Medicine in such a way that you, the average patient, can discover what is hidden behind the confidentiality agreements. 

Is this all fair? Probably not. 

Is it legal? Yes. Yes it is. 

The same way it is legal for an adult film actress to sign a confidentiality agreement that she will not discuss past sexual relationships, or the way a divorced couple walks away from a marriage without the Court file reflecting where every penny went. 

The real question then becomes — How can patients really dig in and research their providers.

In Virginia, the best way to look is by searching your local county or city circuit court records. Want to see if Doctor X has been sued?

  • Visit: http://www.courts.state.va.us/
  • Click on the left side – Virginia’s Court System (in the red bar)
  • Then click on Circuit Court
  • Then pick the County
  • Then pick CIVIL case
  • and type in the doctor’s Last name – Wowee – see what comes up! 

Multiple lawsuits in a short period of time? That doesn’t happen in Virginia with good doctors and surgeons. It typically reflects bad care.  

Want to see how a local surgeon stacks up against other doctors? Check out pro-publica’s Surgical Scorecard https://projects.propublica.org/surgeons/

Don’t assume a google search will show you everything that is there. Dig deeper. And hopefully, if you don’t like what you see you can find a new physician. 

Justice isn’t just

October 6, 2018

A recent situation unfolding in the United States Senate (namely the hearings related to the nomination of Brett Kavanaugh for Supreme Court) have consumed our attention, outrage and thoughts for many weeks. 

Polls suggest that while almost 60% of Americans find the accuser credible, most Americans also believe there should be some additional corroborating evidence to support her claim. The lack of the evidence, as well as the accuser’s memory, decades of silence her political bias, timing of the claims, and her training in psychology make the allegations all the more untenable, according to sum. 

While others understand the timing (he wasn’t a Supreme Court nominee before), holes in memory (one cannot recall every detail of a day 35 plus years ago) and reason for silence (fear, embarrassment, pain).

But it isn’t my goal to outline, rehash or even re-draw the lines on this debate. Rather, it is my goal to use this very public discussion to make a difficult point. The point, is that I no longer believe the Justice System is Just. 

Let me tell you a story – 

62 year old woman lives Virginia. She and her husband of 20+ years create a retirement goal and plan, hoping to quit work at age 65. Woman experiences incredible abdominal pain and reaches out through hospital communication portal “MyMedicalChart.com” to seek Doctor’s advice. She says, I can’t diagnose you – go to the hospital. The next day, pain is worse, patient does go to her local hospital. A CT is taken and reflects a possible abdominal tumor, but the ED doctor doesn’t see the report of the tumor. The radiologist doesn’t call anyone about the findings. And the primary care doctor, who told her to go to the hospital, never reads the report. So months go by and no one is doing anything about the tumor. In fact, the only person who knows it’s there is the radiologist and he doesn’t discuss it with anyone, assuming his written report in the chart is enough to get the other doctors moving. 

When the tumor is finally diagnosed, the tumor is no longer incapsulated – it has grown, and the cancer is worse. She will now likely die of cancer in the next 1-3 years, whereas had it been diagnosed when the CT was taken, she would have had a better than 50% chance of living 5-10 years. 

Now, if people were polled after reading the above scenario, they might come down in one of the following categories:

  • Wow. Bad luck but that’s life. She shouldn’t sue over that. Mistakes are made. 
  • Mistakes were made and people should be held accountable. 
  • She’s greedy. A lawsuit won’t make her live longer. And she’s almost retired anyway/ 
  • That’s why doctors and hospitals have insurance – to pay valid claims like this one. 
  • Patient was also at fault, and should have gotten a second opinion. 
  • All of the doctors are to blame – the radiologist should have called someone and the other doctors should have read the report. 
  • The primary care doctor is not at fault – she doesn’t have time to read every report – only those the radiologist thinks are really important. 

Wow. 7 different opinions from one paragraph?

Or is it 7 different pre-existing opinions that are merely applied to a set of facts? 

My experience is the later. It has been my experience as a trial lawyer and litigator – that we the people, (and in this example – the 7 jurors asked to decide a case) are not really capable of being unbiased. We are not completely capable of analyzing a set of facts through a lens other than our existing opinions, life experiences and beliefs. 

And it turns out, sometimes even the Judge brings his or her pre-existing beliefs and bias into the Court room. Do we want that? Suffice it to say the answer should be no – unless the judge’s bias matches with our client’s position and then – well – human nature is human nature. 

Those of us who believe the Kavanaugh nomination should not have lead to confirmation, are unable to see the perspective of his supporters. Likewise, his supporters do not understand how a mere allegation should curb his nomination.

Imaging asking seven random Americans to sit in a conference room and not leave until they all agree 100% to what happened that evening in July of 1982. Could 7 randomly selected people (none of whom were present) come up with one conclusion that adequately reflects the diversity of opinion? One conclusion that reflects the actual facts?

Seems impossible doesn’t it? And yet – that’s our civil justice system. 7 random strangers have to hear SOME of the evidence, and come to a unanimous conclusionn despite having already formed opinions. 

Is that justice?

I don’t think so. And yet – that is the system we have. 

 

 

 

 

 

Bad stuff happens, and it isn’t always someone’s fault

August 8, 2018

I have spent the last 36+ hours in hospital waiting rooms, the ICU and various stages of pre and post op care with a member of my family. (Thankfully she is doing well). 

I have seen some extraordinary surgical care and most compassionate nursing care. I am also painfully aware of what COULD have happened had anyone failed to do their job well. Death. Paralysis. Kidney failure. Infection. Colon death – the list goes on. 

Not every health emergency is someone’s fault. We all recognize that on some level, but in the throws of loss, or tragedy or suffering, we are often looking for someone to blame. I’ve been there. I understand that. 

And our job as medical malpractice attorneys for families – is to determine whether the emergency happened because someone didn’t do their job, or, if it is one of those awful things that can just happen. 

How do we do that?

We start by requesting the medical records. As medical records are now mostly electronic, the records tell an often detailed story about who did what and when. 

We review the records in detail – often referencing relevant medical literature and studies that reflect the most up to date guidelines and evidence related to the condition and care. 

If we feel no negligence occurred (meaning – everyone did their job well and the bad thing just happened) – we will decline the case. Virginia law does not allow the injured to recover simply because they were injured. The injury has to have been caused by negligent care. 

If we feel negligence occurred because of negligence (omission or mistake of some sort) we next have to hire medical experts to review the case and records.

If and only if, one expert says (1) negligent care was provided; and a second expert says (2) that negligence caused the injury  – do we file suit. 

Clients will often wonder why we don’t use the same experts in every case. The reason is complicated – but in general, we want the expert who is best qualified to review the file, not just someone who knows our firm. 

So while that healthcare emergency was likely the worst thing that ever happened to you or your family, that doesn’t necessarily mean there is a viable lawsuit related to the incident. 

Contact an attorney that handles many Virginia claims to get yours evaluated. 

And know, we are so very sorry for your pain and loss – and will do everything we can to investigate your loved ones care.  

 

Lauren Ellerman named as Leader in the Law – Virginia Living Magazine

August 8, 2018

Frith Ellerman & Davis partner Lauren Ellerman was one of three female attorneys chosen in the Commonwealth by Virginia Living Magazine to be featured as Women Leaders in the Law. 

To learn more about Lauren, her practice, or the non-profit she started Turn the Page, Inc – visit her profile on our website www.frithlawfirm.com