Mobile menu toggle Menu

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.

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

Medicaid – anything but simple in a Malpractice / Personal Injury case

February 27, 2018

Everyone who calls our office and has a Virginia injury case (nursing home, medical malpractice, car accident, trucking accident etc.) is asked a serious of questions by our staff. 

One of these questions is: DO YOU HAVE MEDICAID? 

It is not that we discriminate against potential clients who qualify for Medicaid because of disability or income, rather, Medicaid carries with it some very complicated and important legal issues in a lawsuit. 

I’ll do my best to explain that which the State Government takes thousands of pages to do in the law, and written legal opinions: 

  • 1. Medicaid thinks you are rich if you have more than $10,750 in cash
  • 2. If you are rich, you no longer get Medicaid
  • 3. If you no longer get Medicaid, that which Medicaid was paying for (nursing home, home health, wound care, hospital care etc.) will no longer be covered
  • 4. If Medicaid no longer covers these needs, you will need to obtain private insurance and or be liable for lack of payment
  • 5. If you lie to Medicaid about your $, they can deny you Medicaid AND take your money
  • 6. If you try to be cute and move, rename or hide assets, Medicaid can deny you Medicaid and take your stuff, like house. 

Medicaid in this contexts reminds me of a once loving spouse, that when she learns of your infidelity, becomes your worse nightmare. So better not to cheat at all. 

Also, if Medicaid learns you recovered money for an injury, and they paid for related care – they will want, and will take their money back. Penny for Penny.*

Again, see the divorce analogy?

Scenario 1 – Car accident, recovery $100,000, Medicaid paid for 1 night in hospital ($9,000) and visits to physical therapy ($6,5000). After costs of litigation, client has net recovery of: 

     $100,000 – $33,000 (attorneys fees), – $7,000 (costs) – $15,500 (Medicaid lien) = $43,500. Pretty good deal if the injuries werent permanent. But if the client takes that money, sticks it in the bank, he or she will likely lose their Medicaid benefit and will have to buy private insurance OR place the money in a special needs trust. 

   Private insurance costs $1500 a month, so the annual cost is now $18,000 a year or so. The lawsuit then provides 2-3 years of insurance premiums and not much else. Worth it? Not likely to the client who lost Medicaid. 

OR

  Client could place that money in a special needs trust and will need to call the Trustee to spend that $40,000. They won’t lose their MEdicaid (bonus) but they will have some added hoops to jump through. 

Neither is ideal. Neither is easy. But either is required.

So when you call a firm to inquire about your potential recovery, and you have Medicaid under Virginia law, ask about the following: 

  1. Do you Lawyer – know about Medicaid liens?
  2. Do you have experience with protecting client’s Medicaid?
  3. What is my likely recovery after all liens are paid – is it worth it? And if the firm cannot answer these questions with a YES  / YES / YES – don’t pursue the case, at least with them. 

The law is tricky sometimes. Call an attorney that knows how to help you navigate medicaid liens and Virginia law. 

 

What to do when you are concerned a Virginia Nursing Home is providing bad or negligent care

February 25, 2018

I get the following call with frequency:

Caller: I am not sure whether you can help me. I’m not really interested in
filing a lawsuit but I don’t know what else to do. My Mom is a resident at Virginia Nursing Home INC LLC and they don’t take good care of her.

I usually inquire as to specifics the person has observed, try to get additional information about Mom’s medical history, length of stay at the facility, means of payment etc. 

Most of the time our conversation ends with me saying something like the following:  

Me: I’m glad you called. Thankfully, what you have described does not rise to the level of negligence such that you would have a lawsuit. Nor do I recommend getting a lawyer involved – but let’s be more direct and organized in getting her better care. 

Why would I – a lawyer who does in fact make a living from filing lawsuits, be glad the caller does not have a lawsuit? Simply stated, you only have a lawsuit when someone has experienced a permanent and life changing injury. 

Even in a nursing home – not all falls rise to the level of a lawsuit. Just because there is a pressure ulcer, doesn’t mean there is a lawsuit. Medication error doesn’t always mean lawsuit. Hospital admission doesn’t mean malpractice suit 100% of the time. 

Under the law, there must be MEDICAL NEGLIGENCE (negligence) – THAT CAUSES (causation)  – PERMANENT OR LIFE CHANGING INJURY (damages). 

So when someone doesn’t have a lawsuit, that usually means their loved one will either get better (not permanent injury) or perhaps difficult to claim it was caused by negligence etc.

So what advice do I give to the folks who really just want help in getting better care? See below. 

There are ways to be an effective advocate for a loved one in a facility.

  • Threatening a lawsuit does not help. 
  • Threatening a nurse does not help
  • Getting angry doesn’t help
  • Getting organized, does help
    • Ask for a meeting with Director of Nursing and Administator
    • Carefully document concerns and details (times, nurses names, issues)
    • Keep notes during visits
    • Attend Care Plan meetings (by phone or in person)
    • Ask to be notified on all Changes in Condition (Caps = term of art, the facility will understand!)
    • Have your loved one examined by an outside provider
    • Have their medication list examined by an outside provider

Once you have documented attempts at trying to get better care, and consistent follow up from expressing concerns to the facility – you can determine whether or not the care meets what your loved one needs. If not – leave. Find a new place. Do everything you can to get the care your loved one needs. 

If your efforts are for naught, and permanent injury happens – then you can call a lawyer to inquire about a potential lawsuit. Otherwise, spend your time and energy on getting better care. 

We are able to help the families that were active in their parents care, (daily calls and visits), organized in expressing concerns, and dedicated first and foremost to loved ones care and wellness. If god forbid, a horrible accident or injury occurs (and they do!) we believe in accountability through Virginia’s legal system. 

Questions – feel free to call us. We would be honored to help determine what can and should be done next. 

Lauren Ellerman 

 

Broker Protocol – always changing

December 6, 2017

All – no surprise here, but a few of the big financial houses have decided they don’t like to share. 

I know, shocking right?

According to www.thinkadvisor.com  Morgan Stanley and Merrill Lynch says it is staying put. Meanwhile, Wells Fargo says it remains undecided about whether it will stay or go.

What does this mean and why should you care?

Well, in sum, it means the long standing gentlemen’s agreement (and yes, I chose that word on purpose) that allows firms to take books of business with a new hire, despite having that hire sign non-solicitation or non-compete agreements, may be unraveling. Why? Because business is good and litigation not always a bad idea, at least if you are Morgan Stanley, UBS or some of the other larger firms who don’t mind attorneys fees. 

Are you in financial services? Hoping to shop your book to a new firm? Wondering how this change could change those plans? We are happy to evaluate your contract, move and advise accordingly. 

 

 

 

State v. Federal Trade Secret Laws (Virginia Trade Secret Act, Uniform Trade Secret Act and Defend Trade Secret Act)

September 5, 2017

For years I have advised Virginia employees to calm down when it comes down to Trade Secret issues. 

Well, I hope I haven’t been that passive aggressive in my advice. My intent has always been to provide employees with a simplified understanding of what their legal rights and obligations are regarding their employer’s trade secrets. And in order to do that, I over simplify. 

For years, I have advised the following:

  • All confidential information is not considered trade secret
  • When you leave, leave all secret and confidential information – don’t take copies (and that includes keeping electronic copies)
  • Assume your company considers all confidential information to be trade secret
  • Also assume your company is wrong – not all confidential information is considered to be trade secret
  • Realize the courts will ask three important questions, in determining whether the information is really a Trade Secret  
    • A trade secret is that which is kept secret with efforts made toward it’s secrecy 
    • A trade secret has value to the company
    • A trade secret is not generally known or knowable to the public

Is my office manager’s hourly rate a trade secret? Sure, we would like for it to be confidential – but it does not meet any of the three questions penned above? Of course not. It’s therefore not a trade secret. 

Is my marketing plan for 2018? Maybe. If I send it to three PR firms and ask for their input, do you think it can be deemed a trade secret then? No. Not likely. 

Is the code for a new attorney client communication App my firm is developing likely a trade secret? It might be. Depends on who is developing it and who has access to it. 

Generally, the rule of thumb is that judges decide what is and what is not a trade secret, and if the information can be obtained from a third source (vendor, internet, public bid, patent, etc.) it is not likely given trade secret protection. 

The above advice has for years applied to Virginians under state and federal law as Virginia basically adopted the Uniform Trade Secret Act many moons ago. 

But in the last twelve months, we are seeing a slight shift in Trade Secret Law. In 2016 Congress enacted (yes, let’s pause and reflect on that truth. The legislative body in Washington actually wrote and passed a law in 2016) called the Defend Trade Secret Act (DTSA) that gives companies the right to seek protection (think injunction) of possible trade secret breaches in Federal Court with some speed and efficiency. 

Under the law, a company that feels a trade secret has been taken and misappropriated, can run to the Federal Court (which they may not have been able to do in the past) and seek a seizure order to enjoin future use, or sharing of the secret information. 

In trying to maintain my MO of keeping things simple, the law doesn’t change much of what Virginians are dealing with. It opens federal court house doors to actions that may have been limited to state court houses in the past, and does give companies a quick bite at the apple before expensive litigation begins. Other than how and where the actions can be enforced, the definition of what is a trade secret hasn’t changed. 

And my advice hasn’t really changed either. 

However, there are some great resources out there to help folks understand the issues in slightly more detail than this post.

9 page smart lawyer summary of Trade Secret Law – can be found here: http://www.ebglaw.com/content/uploads/2014/06/47227_PLC-Trade-Secret-Laws-Virginia.pdf

American Bar Association summary on DTSA – can be found here: https://www.americanbar.org/publications/blt/2016/09/03_cohen.html

Shortest blog post ever written on Virginia Trade Secret Law – can be found here: 

http://virginianoncompete.com/2010/01/22/virginia-trade-secret-act/

What could go wrong – orthopedic surgery in Virginia

August 23, 2017

With over 5 million orthopedic surgeries in the United States each year and Americans getting older thanks to advances in modern medicine, it is important to know what should happen after an orthopedic surgery, and where mistakes are often made. 

Likely, if you or a loved one needs an orthopedic surgery because of an acute (sudden) injury such as a hip, leg, ankle fracture, or chronic condition (long term) that leads to a knee or hip replacement, the following healthcare providers will be involved:

  • Orthopedic Surgeon
  • Physician Assistant to Orthopedic Surgeon
  • Office staff of orthopedic surgeon
  • Anesthesiologist
  • Cardiologist for surgery clearance
  • Post Op PACU staff
  • Hospitalist if surgery occurs inpatient 
  • Physical Therapists
  • Occupational Therapists
  • Wound care nurses
  • Home Health or Rehab Staff

The list goes on. And when you have numerous providers each handling one aspect of care, mistakes in communication are bound to happen. And with 5 million surgeries a year, it is likely you or your loved one is just one of many patients being operated on at your surgical site in a day, and receiving post operative care. 

So, what could go wrong? The following is a list of the more typical mistakes that are made before, during or after an orthopedic surgery: 

  • Negligence that causes fracture – such as fall or improper transfer in a nursing home or hospital
  • Wrong site surgery (yes – this still happens)
  • Improper anesthesia (Not all orthopedic surgeries require general anesthesia and many can/should be handled with regional blocks)
  • Negligent pre-op evaluation which could include failing to appreciate a heart condition or other condition which would place the patient at risk during surgery
  • Failing to stop blood thinning medication pre-operatively
  • Incorrect orthopedic device (wrong size rod, screw, etc)
  • Nerve damage during placement of device (yes, there are nerves in your lower limbs that need to be protected during surgery)
  • Inadequate DVT prevention post op (failing to order medication or use foot pumps)
  • Excessive DVT medication that could cause internal bleeding (Xarelto, Coumadin and Lovenox are often used post operatively and all three come with significant risk and complications)
  • Failure of therapists to follow physician orders re: weight bearing, non-weight bearing
  • Failure of therapists to quickly initiate proper therapy
  • Transfer mistakes leading to patient falls, additional orthopedic injuries
  • Infection of surgical sites
  • Failure to diagnose or treat infections post operatively
  • Foreign bodies left in patient (gauze, sponges) 
  • Medication errors post operatively (mistakes in writing orders or administering medication)

hip

Sadly – when you are dealing with so many providers, the list of possible mistakes could go on. 

While not all mistakes are preventable, and not all are negligence under Virginia law, our office can quickly help your family determine if the complications you experienced before, during or after an orthopedic surgery rise to the level of malpractice under Virginia law. 

No surgery is risk free – but one thing we advise all families to do is be your own best advocate. Take notes while speaking to doctors. Write down orders to make sure you understand the plan and question when it changes. 

This week I am helping a loved one after a hip fracture and repair, and have already needed to clarify physician orders on three separate issues (who is doing wound dressing changes, when is the patient to receive rehab, and who is to remove wound staples). The MD orders state one thing, yet home health claims another. When in doubt – call. Be an advocate. Ask questions. And call our office if you have further concerns about orthopedic surgery in Virginia – 540-520-4582. 

 

Even blood tests/donations have complications

August 10, 2017

I gave blood yesterday at a local Red Cross Blood Drive co-sponsored by my church. 

When they asked what arm I wanted the blood drawn from – I quickly said LEFT. My non-dominant arm. 

The phlebotomist was a very nice man, kind of jumpy, a little nervous – but nice and good at his job. 

Why my LEFT arm?

In the last few years our firm has handled a number of medical malpractice cases related to blood donations, testing, transfusions etc. We have represented folks with permanent long term nerve damage, serious blood born illnesses, those who suffer head injuries related to falls from chairs and tables, and a myriad of other injuries related to blood testing, donations and transfusions. 

Here is a list of the kind of injury that can occur during a blood test or donation:

  • Nerve Damage related to wrong location stick
  • Infection related to unclean / unsanitary donation equipment
  • Head injuries / hematoma related to a fall from donation chairs and tables 
  • Blood born illness related to contaminated transfusions

Sadly, the list goes on. As I was watching the Red Cross staff work yesterday, I began thinking about all the possible ways that problems could occur resulting in injuries. Thankfully, serious injury is rare – but when it does occur, our office investigates without charge to determine whether the injury and or illness was related to negligence (human error). 

Give Blood. It’s important. But maybe, just to be on the safe side – give from your non-dominant arm. Better to have nerve damage on the side you don’t need to write and eat.