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Attorney Credits WebinarHow to Get New Business From Your In-Person and Social Media Marketing”
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Strategies to Improve Your Social Media Presence

Learn how to maximize online reviews, avoid common social media traps, and selecting the right personal content to post online.Strategies to Improve Your Social Media Presence

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Maryland Jury Awards $17 Million to Pilots Killed in Midair Plane Crash

A jury in Maryland awarded a total of $17 million to the families of helicopter pilots killed in a midair collision in Frederick, MD, in 2014.

Midwest Air Traffic Control Services, the contractor that runs the tower at Frederick Municipal Airport, was found liable.

The families of Christopher Parsons, 29, of Westminster, recovered $5 million and the family of William Jenkins, 47, of Morrison, Colorado, recovered $12 million for the fatal midair crash of their helicopter and Cirrus plane on Oct. 23, 2014.

Economists working on behalf of the families estimated that Parsons would have contributed around $3.3 million to the family if he worked until age 70. They calculated the financial loss of Jenkins, president of his family business, Allegany Coal and Land, at around $4.5 million. In a second estimate that included the value of dividends from the company, the loss was as great as $12.2 million.

Midwest blamed the crash on pilot error.

Parsons’ widow, told the Frederick News-Post, “The biggest thing I wanted was for my husband’s name to be cleared,” Ashlee Parsons said. “He was an amazing pilot.”

NY prosecutor married to defense attorney talks about justice

What would life be like if you were a New York City prosecutor and your wife was a defense attorney for juveniles? Jesse Weinstein doesn’t have to wonder. Weinstein says he often gets in debates with his wife about the finer points of the American justice system. Read about how their marriage includes lessons about justice in this story by The Marshall Project.

Colorado Woman, Paralyzed by Medical Malpractice, Recovers $14.9 Million

Bruce Braley of Leventhal & Puga PC in Denver, CO.

Bruce Braley of Leventhal & Puga PC in Denver, CO.

A Colorado jury awarded a 57-year old woman and her husband $14.9 million in a case whereas she was paralyzed by an epidural steroid injection that was clearly labeled as not for that use.

The jury found The Surgery Center in Lone Tree, CO, liable.

The plaintiff, Robbin Smith of Castle Rock, CO, was 57 when she received the injection of Kenalog in 2013. She was immediately paralyzed from the waist down.

Two years before she got the injection, Bristol-Myers Squibb got FDA approval to change its label for Kenalog to state: “Not for Epidural Use.”

“This verdict won’t restore Robbin’s ability to walk,” attorney Bruce Braley of Leventhal & Puga told the Denver Business Journal. “But it will give Robbin and Ed the chance to make the most of the life they now have.”

Smith’s attorneys showed the jury examples of bottles, packages, and labels with the printed warning. The warning label included language describing the adverse reaction that paralyzed Smith: “Spinal cord infarction, paraplegia, quadriplegia, cortical blindness and stroke (including brainstem), have been reported after epidural administration of corticosteroids.”

Doctors never informed Smith of these label warnings.

Who’s more liberal, lawyers or law professors?

A new study shows that although most lawyers are considered liberal, law school professors are even more liberal than their former students. The paper, featured in the Washington Post, found that only 15% of law professors are conservative, while 35% of lawyers are conservative as well. Find out more about the study in this story.

Confidence of eyewitness affects accuracy of ID, according to study

The quality of memory and accuracy of an eyewitness can vary depending on the self-confidence of the witness, according to a new study reported by Science Daily. A pair of psychological scientists report that confidence of the witness can reliably indicate the the accuracy of identifying someone under “pristine” conditions. Read more about the study in this story.

Study: Fewer Medical Malpractice Claims, But Increase in Awards

Adam Schaffer, MD, a hospitalist at BWH and lead author of the paper.

Adam Schaffer, MD, a hospitalist at BWH and lead author of the paper.

Using data from the National Practitioner Data Bank (NPDB), a centralized database of paid malpractice claims that was created by Congress in 1986, physicians at Brigham and Women’s Hospital analyzed the trends in paid medical malpractice claims for physicians in the United States from 1992 to 2014.

“We’ve found that there was an overall drop in the amount of paid claims across all specialties, but that the magnitude of the decline was markedly different by specialty,” said Adam Schaffer, MD, a hospitalist at BWH and lead author of the paper.

This is the first analysis to evaluate paid claims by physician specialty at the national level. The findings are published in the March 27, 2017, issue of JAMA Internal Medicine.

Researchers report that the overall rate of claims paid on behalf of all physicians dropped by 55.7 percent. Pediatricians had the largest decline, at 75.8 percent, and cardiologists had the smallest, at 13.5 percent. After adjusting for inflation, researchers found that the amount of the payment increased by 23.3 percent and was also dependent on specialty. Neurosurgery had the highest mean payment, and dermatology had the lowest. The percentage of payments exceeding $1 million also increased during the same time period.

“Previous research has shown that physicians’ perceptions of their risk of liability can influence their clinical decision-making, and a better understanding of the causes of variation among specialties in paid malpractice claims may both improve patient safety and reduce liability risk,” said Allen Kachalia, MD, chief quality officer at BWH and senior author of the study.

Error in diagnosis

Additionally, the authors report that the most common type of allegation was an error in diagnosis (31.8 percent of all paid claims), followed by errors related to surgery (26.9 percent) and errors related to medication or treatment (24.5 percent). Thirty-two percent of paid claims were related to a patient death, with pulmonologists most likely to be involved in a claim that involved a patient death. Plastic surgery and dermatology had the highest percentage of claims that were considered low-severity, with minor physical or emotional injury.

“Specialty-specific information about paid claims may help inform decisions about the approaches needed to simultaneously improve patient safety and reduce liability,” write the authors.

They note that their analysis is limited by the information available in the data sets that were used, the NPDB and the American Medical Association Masterfile. The AMA Masterfile provided the number of physicians by specialty, but does not account for clinical volume. The NPDB includes information about claims settled on behalf of individual physicians, but does not include data about claims for which no payment was made and for those settled on behalf of institutions.

Paper cited: Schaffer et. al. “Rates and Characteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992-2014.” JAMA Internal Medicine. March 27, 2017. doi:10.1001/jamainternmed.2017.0311

Mental health care in the Bureau of Prisons

By Alan Ellis and Mark Allenbaugh

U.S. Bureau of Prisons (BOP) policies are complex and difficult to understand—even defense lawyers find them taxing particularly so when it comes to medical and mental health issues. Clients and families are more often than not lost in the bureaucratic maze of terminology and regulations, and they turn to their lawyers for explanations.

In earlier columns, “BOP Designations Based on Medical Need,” Criminal Justice (Fall 2008) and “BOP Healthcare: What You (and Your Clients) Need to Know,” Criminal Justice (Winter 2009), I discussed medical care in the Bureau of Prisons. This article is intended for the attorney to understand and be able to provide his clients and their families and friends information regarding mental health treatment in the BOP.

For a number of years, the Bureau of Prisons has classified inmates based on their medical needs. There are four levels of medical care classification. Recently, the BOP has adopted mental health classifications. In addition to receiving a classification for security and healthcare, BOP inmates are now classified based on mental health care need. Similar to the four medical care levels, all inmates are assigned to one of four mental health levels.

CARE1-MH: No Significant Mental Health Care: those who show no significant level of functional impairment associated with mental illness and demonstrate no need for regular mental health interventions; and either has no history of serious functional impairment due to mental illness or if a history of mental illness is present, have consistently demonstrated appropriate help-seeking behavior in response to any reemergence of symptoms.

CARE2-MH: Routine Outpatient Mental Health Care or Crisis-Oriented Mental Health Care: those requiring routine outpatient mental health care on an ongoing basis; and/or brief, crisis-oriented mental health care of significant intensity; e.g., placement on suicide watch or behavioral observation status.

CARE3-MH: Enhanced Outpatient Mental Health Care or Residential Mental Health Care: those requiring enhanced outpatient mental health care (i.e., weekly mental health interventions); or residential mental health care (i.e., placement in a residential Psychology Treatment Program).

CARE4-MH: Inpatient Psychiatric Care: those who are gravely disabled and cannot function in general population in a CARE3-MH environment. In determining an appropriate mental health care level, an individual’s current, recent, and historical need for services is considered, along with consideration of any type of psychotropic medication required. The BOP offers a number of formal, organized psychology treatment programs with specific target populations, admission criteria, and treatment modalities. Many of these are residential programs offered only at select facilities. General psychological services and mental health crisis intervention are available throughout the BOP. Psychiatric services, including psychotropic medication, are generally coordinated through health services in conjunction with psychology services staff. Psychiatry services may be available either through contracts with a community psychiatrist, or increasingly, through telepsychiatry with a BOP psychiatrist at another location.

DESIGNATION AND LEVEL OF CARE SCORING
When initially scoring an inmate, the assigned team utilizes a Medical Calculator to determine the screen level. If the inmate is scored as a SCRN3 or SCRN4, he/she will be referred to the Office of Medical Designations (OMDT) for further review. OMDT then decides whether the SCRN level will require further review of the available information. If the inmate comes back from OMDT as a SCRN1 or SCRN2, the latter will be referred back to Designators who will designate the inmate to an appropriate CARE1 or CARE2 facility. If the inmate is determined
to meet the criteria for a CARE3 or CARE4 facility, OMDT will designate them.

A provisional CARE level is assigned by the Designations and Sentence Computation Center (DSCC) based primarily on information contained in the Presentence Investigation Report. After arriving at the designated facility, the provisional CARE level is reviewed by BOP clinicians and a non-provisional CARE level is assigned. These assignments depend on the defendant’s physical, medical and mental condition, clinical resources and inmate needs and his or her ability to function daily without assistance.

While it may vary from institution to institution and from mental health professional to mental health professional, generally speaking mental health treatment in the Bureau of Prisons is designed to enable the inmate to function within the prison system, for example, not a danger to self, staff or other inmates. Outside of the formal programs mentioned above, rarely will an inmate receive any meaningful treatment for underlying disorders such as PTSD, Major Depressive Disorder, Bi-Polar Disorder, and the like, as all treatment modalities are not offered, for example, EMDR (Eye Movement Desensitization and Reprocessing) for treatment of PTSD.

This is regrettable. Department of Justice estimates are that one in four inmates in this country suffers from a diagnosable mental health disorder. With the Bureau’s emphasis on reducing recidivism, more attention given to the mentally ill will go a long way to achieving this result.

###

Alan Ellis, a past president of the National Association of Criminal Defense Lawyers and Fulbright Award winner, is a criminal defense lawyer with offices in San Francisco and New York. Mr. Ellis has 50 years of experience as a practicing lawyer, law professor and federal law clerk. He is a nationally recognized authority in the fields of federal plea bargaining, sentencing, prison matters, appeals, habeas corpus 2255 motions and international prisoner transfer for foreign inmates. Mr. Ellis has successfully represented federal criminal defendants and inmates throughout the United States. He is a sought-after lecturer in criminal law education programs and is widely published in the areas of federal sentencing, Bureau of Prisons matters, appeals and other post-conviction remedies, with more than 120 articles and books and 70 lectures, presentation and speaking engagements to his credit. He can be reached at AELaw1@alanellis.com.
Mark H. Allenbaugh is co-founder of Sentencing Stats, LLC (www.sentencingstats.com), a consulting firm focused on analysis of federal sentencing data for attorneys and their clients. He is a consultant to the Law Offices of Alan Ellis. Prior to entering private practice, he served as a staff attorney for the U.S. Sentencing Commission. He is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2nd ed., Foundation Press, 2002). He can be reached at mark@sentencingstats.com.

NTL President-elect Mark Lanier joins lawsuit over mentally disabled football player

The National Trial Lawyers President-elect Mark Lanier has joined a civil lawsuit against an Idaho school district over the locker room attack of a black mentally-disabled football player. Lanier, winner of the 2016 Trial Lawyer of the Year award at the Trial Lawyers Summit, says the attack is “about the most appalling thing” he’s ever seen. Details in this story from magicvalley.com.