Author: JGL Law

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INTRODUCTION

The damages sustained by a seriously injured child do not just relate to the child himself.  They also affect the altered lifestyles of siblings and parents and encompass a whole host of experts who are necessary to explain, prognosticate, and portray what the child and the family’s life will become.  This paper will concentrate on the psychological and emotional damages and not on the economic loss.  Obviously in fully presenting damages a life care plan and economist are essential.

THE CHILD

            A catastrophic injury may appear to speak for itself; however, to portray the full scope of the situation, the attorney needs to understand the child’s relationship to himself and to the world around him.

            There are two types of injuries that may exist either individually or together:  functional and emotional.  This will depend on whether the child was born with the severe damage, perhaps because of obstetrical malpractice, or born normal and have suffered some catastrophic incident (medical or otherwise) subsequently.

            Catastrophic injuries come in varying degrees.  There is the child who has suffered total brain damage and is incapable of understanding his situation and yet still feels pain.  There is the child who has suffered a catastrophic injury which has left his or her brain function in tact.  One must comprehend how the child copes with what is wrong and why he is different.   In the case of a severe brachial plexus injury (as a result of the failure to appropriately address a shoulder dystocia) to quadriplegia, (from a gymnastics incident or perhaps an auto accident), the child may fully be aware of the injury he has suffered.   What may not be evident to him (depending upon his age) is the depth of the emotional damage and feelings that he will have after he realizes how he must live the rest of his life.  This will be brought to light dramatically by his or her interaction or the lack thereof with peers and may lead to the destruction of or the inability to create a positive self-image.              

            The child who has been the victim of severe trauma has many emotional and psychological needs.  This encompasses the need to understand and to learn to express feelings – sadness, fear of the future and their sense of loss[1].   These realizations pass through different stages.        

            Anger may arise from different feelings including frustration, fear, helplessness, and humiliation.[2]  This anger may cause the child to react in different ways.   Anger may have its good and bad sides.  When it is directed internally it can lead to depression.  When it is turned outward it may motivate the child to achieve.[3]   In those cases where the child can achieve those successes they will demonstrate to a jury the strength of the human spirit.   We all have a special feeling for those who fight to improve themselves especially when they are facing almost insurmountable odds.         

            Other stages that the child will go through are depression and adoption.   Adoption may lead to the loss of self-esteem as the child feels helpless.  The child may rethink his self-image in light of the critical changes that have taken place in his life, in his surroundings, and in his abilities.[4] 

            In the appropriate case, where the child has a brain function and has achieved, the attorney should resist the impulse to dwell on the negative.   In a case involving a high school student who became a quadriplegic because of alleged negligence on the part of an art teacher who was made the gymnastics coach the jury was addressed as follows:    

“. . . Peter has been able to do a lot.  He has been able to use his hands to some extent.   The evidence will show that he has been able to do basic things that he could not do after he was hurt, like brush his teeth or open a box of cereal.  He can do those and we are going to those.  And we are going to show you a videotape of what it is like in the day of the life.”

Of course, it is important to advise the jury also of the extent of the injury:

“. . . Peter became, at that time, a quadriplegic.  That meant that most of his body was not working.  It means his arms were not working and his legs were not working and his bladder was not working, and he had no control over his body functions.  And most of that, a lot of that, still exists today.”                                  

THE FAMILY

            It is easy to concentrate on the injuries of a severely injured child, but one must also examine the family relationship and how it has changed.   How do his brothers and sisters and parents handle what has happened.  How do his siblings react to the fact that most of the parents’ attention and time is spent on the victim.            

            Many parents of brain injured children want to take care of them at home, however, what happens when the child grows and reaches puberty?  What happens when neither mother nor father can physically handle such as bathing?  To accurately portray the totality of the care that the child will need, appropriate experts, neurologists, orthopedists, rehabilitation physicians and life care planners need to be consulted.

            The emotional damage to a family can also be severe, from depression, to the lack of understanding of younger siblings about their relationship to the injured child.  All of this may add to the victim’s pain and suffering.  A psychological profile of the family can put things in perspective.      

            A neuropsychologist will need to meet with the child and outline the types of therapies that will need to cope with rejection as well as the uncomfortable situations that will be regularly encountered when confronted by staring strangers.  Finally, the family will need help in handling those strangers who cannot resist the temptation to inquire as to why the child has this problem.          

THE EXTENT OF THE INJURY 

            The child’s ability to be functionally educated may be directly tied to a difference between performance skills and abilities.   The results of testing will help the life care planner and the neuropsychologist, outline the type of therapies the child will need to reach his or her maximum potential.   The more special help the child needs, the greater the cost. 

An issue that must be addressed head-on is the issue of life expectancy.   There are studies that have been done dealing with life expectancy based upon such things as reaching certain milestones and the child’s ability to do certain functional things.  One must be careful in examining the literature to determine its age and its scope.  There have been studies done in England, California, Australia, and Illinois.   The longer a seriously disabled child lives the longer the life expectancy seems to be.   The attorney handling these cases must look carefully into the qualifications of the people doing these studies, the data bases from which the statistics are taken, the error rate in the medical journals, whether these materials have been reviewed by statisticians as well as other issues.  It is this writer’s belief that the child should be entitled to the best help and care available so that he or she can reach his or her maximum potential.

PRESENTING THE CHILD                     

            It is important, for the child not only to be portrayed as he or she is, but how he or she will be in the future.  The child may need several operations.   How much hope and courage can the human spirit display operation after operation?  How much optimism can the family instill in the child after he fails to improve after numerous medical procedures?  Many children are scared when they go to the doctor.  Imagine how they feel every time they return for surgery; how the parents feel every time they are given informed consent and told their child may not come out of the procedure alive.                 

            There are many ways to portray the child in the courtroom:  the “Day in the Life” film, still photographs, and the child him or herself.   However, above all else, it is a sensitive and compassionate presentation, covering all of the aspects of the injured child’s present and future that will illustrate the best picture of what is and what can be.

ANDREW GREENWALD IS A PRINCIPAL IN A LAW FIRM OF JOSEPH, GREENWALD & LAAKE, P.A. AND ALSO A MEMBER OF THE BOARD OF THE BIRTH TRAUMA LITIGATION GROUP OF THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA.  HE CONCENTRATES HIS PRACTICE IN MEDICAL MALPRACTICE.  HE HAS LECTURED IN THE AREAS OF OBSTETRICAL NEGLIGENCE, DISCOVERY AND HANDLING MEDICAL NEGLIGENCE CASES.  HE HAS WRITTEN NUMEROUS ARTICLES IN TRIAL MAGAZINE ON NEGLIGENCE ISSUES. 

You can find his article, “Anticipate Goals and Habits of Mellennial Beneficiaries” below. 

Jeffrey Greenblatt an co. had an article published in Estate Planning Magazine. Check it out. 

Whistleblowers and those who support and represent them will be pleased and energized by a December 28, 2016, ruling by U.S. District Judge George H. King of the Central District of California in a case involving the unapproved, or off-label, marketing of prescription drugs.

Doctors are generally allowed to prescribe prescription drugs for uses that haven’t been approved by the Food and Drug Administration, but pharma companies are barred under federal law from marketing drugs to doctors for these unapproved uses.

In this case, Celgene, a major biotech company, was targeted by a former employee, Beverly Brown, who blew the whistle on the company’s marketing practices. Brown alleged that Celgene promoted two of its prescription drugs, Thalomid and Revlimid, for use in cancer patients, an application that the FDA had not approved.

Brown was hired by Celgene in April 2001, essentially in a sales and marketing capacity. In late 2007, she became concerned when her manager instructed her to call doctors to ask them to change the billing codes associated with prescriptions of Celgene’s drugs. Brown complained to management about the practice, which she believed was illegal. She later contacted the FDA, and in 2010, she filed a qui tam case against Celgene on behalf of the federal government, 24 states, the District of Columbia, and the City of Chicago.

In her complaint, she alleged that Celgene illegally promoted Thalomid and Revlimid to doctors for unapproved uses. She invoked the federal False Claims Act and similar state laws.

The theory behind her case, as is typical in whistleblower cases, was that the federal government and state governments spent money on these drugs for their unapproved uses under the Medicare and Medicaid programs and other health-care programs. Since these uses were unapproved, each claim for reimbursement by Celgene under a health-care program constituted a false claim under these laws, Brown asserted.

Celgene sought summary judgment, but Judge King rejected that motion and found that a reasonable jury could conclude in Brown’s favor – so that case can and will proceed.

The judge wrote, “Brown’s evidence shows that Celgene engaged in a systematic campaign to promote off-label uses of Thalomid and Revlimid, that physicians who received more promotional contacts prescribed at a higher rate than those who received fewer contacts, that Celgene knew its promotional activities were delivering results, and that marketing to doctors is generally effective.”

Looking carefully and precisely at the very complex Medicare statute, Judge King squarely concluded that “Medicare claims that seek reimbursement for non-medically accepted uses are false as a matter of law.” 

Revlimid’s total sales in 2015 were $5.8 billion, and the case against Celgene is estimated to have involved hundreds of thousands of prescriptions, so the stakes are very high in this case. What’s more, Judge King has delivered an unequivocal statement that the False Claims Act has a major role to play in challenging off-label uses of prescription drugs.

I often represent whistleblowers – employees in either the private or public sector who become aware of wrongdoing by their employers and come forward to report the wrongdoing in the interest of pressing for change and reform.

Over the years, we have won hundreds of millions of dollars in cases that were originally spurred by whistleblowers’ activities, and we have achieved courtroom victories for whistleblowers who suffered illegal retaliation precisely because they chose to blow the whistle on improper corporate actions.

But does whistleblowing have a positive long-term effect on corporations? Does it make them more ethical, years after the whistleblower’s activity is completed? No one really knows the answer, but a recent study from the University of Iowa’s Tippie College of Business indicates that the answer is yes.

In a recent article in The New York Times,  reporter Gretchen Morgenson late last year discussed the findings of a study by Jaron H. Wilde, an assistant professor of accounting at that school. Wilde set out to ask the question about whether financial shenanigans at companies in the United States tend to decrease in the years after whistleblowers come forward to tell the truth. He sought to obtain evidence that would suggest an answer.

So in conducting the study, Wilde chose a group of companies that, in the period from 2003 to 2010, were involved in “employee retaliation” cases that were adjudicated before the U.S. Department of Labor. These are cases in which an employee stepped forward as a whistleblower and claimed that he or she was retaliated against by his or her employer. They served as a database of whistleblower cases.

Wilde’s sample included a total of 317 companies, and he compared what went on at those companies afterwards with what happened at “control” companies that did not have whistleblower activity during the time in question.

Wilde found that there were significant differences between the companies that had had whistleblower activity and those that did not.

“Following the allegations,” the study concluded, “whistle-blower firms are significantly more likely to experience a decrease in the incidence of accounting irregularities and a decrease in tax aggressiveness, compared with control firms.”

And Wilde found that the decrease in accounting and tax shenanigans lasted for at least two years. He concluded from his findings that whistleblowers do indeed have significant and lasting effects on their companies.

For those of us who represent whistleblowers on a regular basis, this is a heartening result. It tells us that most whistleblowers are people who take risks in telling the truth in order to right wrongs and bring about fairness and justice.

Wilde’s full study was published in The Accounting Review on January 6, 2017.

Check out the Winter edition of JGL’s newsletter for a recap on the firm’s recent legal successes, news stories and community involvement.

The Attorney/Novelist’s book, Because I Had To, has already gotten rave reviews. Here’s one example

“5/5 Strongly Reccommend! My first thought when I finished this book was NO! How could the author end this book leaving me wanting more? I really did not want the story to end. The novel is the story of Jess, who is an adopted twin who has had a difficult time dealing with her father’s death and her relationship with her adopted mother and twin. We follow her story as she leaves her family and moves to Florida and tries to find herself. She asks her father’s best friend who is an attorney to help her find her birth mother, and they travel together with her best friend to meet her birth mother. The novel is really the story of a young woman who is trying to find herself, as she makes her way through young adulthood, Learning to trust new relationships and how she fits into this world, learning to deal with expectations vs. reality as she integrates what she has learned from her birth mother and adoptive mother and how it all fits the giant puzzle of her life. I found myself drawn to Jess and rooting for her to propel herself forward in life and succeed. The irony at the end of the story was not lost on me, and left me wanting to know what her decision would be and how would her life develop. I really enjoyed reading this author’s novel.”

-Tracy Doerner, NetGalley

Joseph, Greenwald & Laake recently welcomed two new attorneys to its Greenbelt, MD office.  Associate attorney Maritza Carmona is the newest member of the firm’s Civil Litigation team, while Alex Geraldo has joined the firm’s Workers’ Compensation and Insurance practice as a staff attorney.

Ms. Carmona earned her JD from the University of Maryland Francis King Carey School of Law in 2015, where she served as articles editor of the Maryland Law Review.  Ms. Carmona has also served as judicial intern to both the Honorable Wanda Keyes Heard, Baltimore City Circuit Court and the Honorable Robert A. Gordon, U.S. Bankruptcy Court in Baltimore.  Most recently she has served as a law clerk at JGL. Ms. Carmona is a member of the Maryland State Bar.

Mr. Geraldo earned his JD from the University of Baltimore in 2015.  He previously clerked for the Honorable Cathy H. Serrette in the Circuit Court for Prince George’s County.  Mr. Geraldo is also a member of the Maryland State Bar and an eligible member of the Washington, DC bar.

“We are pleased to welcome these two bright new attorneys to our growing JGL legal team,” said Burt Kahn, managing director of Joseph, Greenwald and Laake.  “We look forward to their contributions to help us to continue to provide quality legal services in the civil litigation and workers’ compensation areas.”

JGL Principal Attorney Brian Markovitz contributed to BNA’s Health Law Reporter article regarding the recent decision from the US Court of Appeals for the First Circuit.  The decision clears the way for a False Claims Act case to  proceed against Universal Health Services, Inc.  Click on the image below to obtain the full article:

David Bulitt, a principal in Joseph Greenwald & Laake’s family law practice and our Assistant Managing Director, has just written his second novel that will be published on January 27, 2017. The novel draws extensively both from David’s experience as a father of an adopted child with mental health and addiction issues as well as on David’s 30 years’ experience representing clients in family law.

The novel, Because I Had To, is published by Roundfire Books. Among its main characters are a troubled young woman who runs away from home and a jaded family law attorney who finds a calling to help someone in need. The book tackles people’s complex emotions and views them through the lenses of psychology and law. It takes the reader inside the worlds of adoption, teen therapy, family law, and the search for a biological family. With a cast of finely drawn, complicated characters, it asks it’s readers to consider the question: Can the present ever heal the past?

This is David’s second novel; his first, Card Game, was published in 2015.

For David, the process of researching and writing his books has made him a better observer of the human condition – and a better attorney.

“I find that I am now more able to relate to my clients and to understand their dilemmas, their concerns, their priorities and their problem-solving techniques,” David says. “I have become more passionate than ever in defending my clients’ rights during divorce, particularly when the interests of children are involved.”

David will be discussing his book at a series of events in the Washington, DC, area in beginning in early 2017. The book is available for now for pre-order on both amazon.com and bn.com and will be available for purchase after publication at several local bookstores, on many e-book sites at www.roundfire-books.com.

David’s practice at Joseph Greenwald & Laake focuses on all areas of family law, including cases that involve complex financial and property matters and property distribution, divorce, and child custody disputes. He is often appointed by local courts to serve in one of the most difficult and demanding legal roles, as a Best Interests Attorney for children whose parents are embroiled in high conflict custody disputes. He also has extensive expertise working with families that have children with special needs. 

David has been named one of the DC Area’s “Top Divorce Lawyers” by both Washingtonian Magazine and Bethesda Magazine. Additionally, he has for many years been recognized as one of the “Best Lawyers in America” among Maryland’s and Washington, DC’s “Super Lawyers.”