Q: What is the difference between medical malpractice and a defective drug or medical device case?
A: A medical malpractice case involves a claim where your physician, or other medical care provider, was negligent in the care provided. This means that you suffered an injury as a result of their negligence. The physician may have had a flawed diagnosis, ineffective treatment plan, or poor overall management before and after the treatment. In contrast, drug injury litigation targets the drug manufacturer specifically. Medical device litigation, much like drug injury litigation, is focused on the device manufacturer and an issue with the product, not the physician. At Showard Law Firm, we are Tucson's local law firm for defective drug and medical device claims.
Q: Has my case been “filed,” and should it be?
A: We do not file a complaint unless we need to do so due to time limitations on your claim. Filing incurs costs that come out of your settlement, and it does not speed up the resolution of your claim. The cases that are important to get filed are those that may be bellwether cases. We usually try to avoid bellwether cases.
Q: What is a bellwether trial?
A: The term bellwether refers to the sheep at the head of a herd who wears the bell. In the context of a Mass Tort, it is the case or cases that are tried first and whose outcomes shape or determine the settlement value of the other cases. The Plaintiff's attorneys want the very strongest of the cases to be the bellwether cases, so the verdicts are very high. The defense attorneys of course want the opposite. If your case is not filed, it will not be considered in determining bellwether trials. If you have a good claim, but there are issues, we may advise that your case not be filed unless required due to time limitations. If your case is selected as a bellwether, you must give a deposition, respond to significant discovery, have your doctors deposed, and attend a trial that may last several weeks and will likely not be in the state in which you live.
Q: Can I file in State Court?
A: You can, however, it is not likely your case will remain there. There are very few pharmaceutical or medical device manufacturers who are based in Arizona. When the plaintiff and defendant in a case reside in, or are citizens of different states, the defendant has the right to have the action removed to Federal Court. When an Multi District Litigation is involved, defendants usually petition to have the case removed from the State Court to the Federal Court. Once the action is received by the Federal Court, it is automatically transferred to Multi District Litigation.
Q: How long do I have to file a lawsuit?
A: In Arizona, if you have been inured by a product, including a drug or medical device, you must file a lawsuit within two years of the date of injury. However, some cases mandate a specific date. For example, in Xarelto cases the date of injury is generally the date on which a bleed occurs. Oftentimes, however, you may not realize that a drug or medical device is the cause of your symptoms. For example, in many of our mesh claims, women experience pain and infections for months or even years prior to learning that the symptoms were a result of the mesh eroding. Under these circumstances, you must file a lawsuit within two years of the date that you "knew or should have known" that you suffered an injury related to the product. Again, this is not always clear, so it important to consult with an attorney as soon as possible in order to ensure that you do not wait too long to file your claim.
Q: What is a Mass Tort?
A: Mass torts involve large numbers of claims that are associated with a single product. Mass tort actions are different from class actions. In a mass tort action, each plaintiff has an individual claim as a result of distinct damages. Each plaintiff receives his or her own trial if the mass tort action has not been settled. In a class action, there are many plaintiffs who are typically not considered individually, and there is only one trial. You will also hear mass torts referred to as MDLs. This stands for Multi District Litigation which means that it is litigation involving cases from many districts throughout the nation consolidated into one action under one judge.
Q: How are Mass Torts resolved?
A: Mass torts may be resolved through an organized settlement, or each case may be tried separately. In most cases, there is a global settlement where each plaintiff has the choice to participate in the settlement or pursue their individual claim. If there is not a global settlement, each case is remanded, or sent back, to the federal court for trial in the state where the Plaintiff resides. If your case is not remanded, you still have the benefit of the discovery and preparatory work that was done in the Mass Tort Action or Multi District Litigation. Mass tort settlements vary, but oftentimes a settlement magistrate will be appointed to help the parties work out a system for resolving all claims in an organized and efficient manner. Unlike class actions, in a Mass Tort action, each person has their own unique claim. These claims can range from catastrophic injuries to anxiety and stress. For each category there is a range of values, and it is our job as your attorney to argue for the highest value category and the highest value within that category.
Q: What is the difference between arbitration, mediation, a settlement conference, and litigation?
A: Arbitration occurs when the value of the case is less than $50,000. Often times it is the fastest way to arrive at a decision. In arbitration, the two sides present their case to an arbitrator, who can be either a lawyer or non-lawyer, and they decide the same way a judge or jury would in a trial. A case that might be arbitrated can be about costs and injuries from an accident. If the case is valued over $50,000, then both mediation and a settlement conference become options. Mediation is generally conducted with a single mediator who does not judge the case, but they will help facilitate discussion and eventually help find a resolution of the dispute. In a settlement conference, the judge is appointed by the courts and will make a decision about the case after both sides present their arguments. Litigation is an actual trial which is both time consuming and expensive and does not happen very often with our cases.
Q: How does the process of obtaining medical records work?
A: Medical records have become big business in recent years, and most care providers out-source record retrieval. There are numerous companies whose sole purpose is to copy medical provider's records which include a “retrieval fee” and copying charges. The retrieval fees can vary anywhere from $15 to $100+ because oftentimes copying charges can vary from $0.15 to $25 per page. We first order the records, then we issue the check, mail it and follow up. It is also important that we ensure that we are ordering the records that are relevant to your case.
Q: What are important things to know when giving a deposition?
A: A deposition functions as pre-trial testimony, so it is important to remember that everything you say is under oath. During a deposition, it is critical to answer every question honestly. If you do not know the answer to the question they are asking, it's okay to say "I don't know." Do not make up an answer to a question you don't know the answer to. You must also speak clearly and answer only the question that's being asked. Be concise and do not elaborate when it's not necessary. For example, if someone asks you how you're feeling, be specific and accurately describe your symptoms. It is not necessary to add superfluous information. Remember, anything you say can and will be used against you.
Q: How does social media impact my case?
A: It is important to understand that social media can act as testimony in your case. “Friends” can unintentionally pass along information to strangers who may be working on behalf of the defense attorney or an insurance company. Insurance companies may be entitled to request all information contained within your home computers, laptop hard drives, memory sticks, cell phones, etc. They may even ask the judge to grant them access to your social media pages even if you have the highest privacy settings. As a result, do not send emails to anyone but your lawyers regarding your claim and its progress, your health, or your activities.You do not own the information you post online, and it is highly searchable, so do not enter insurance websites, post on message boards, participate in/ comment on blogs, or go into chat rooms about insurance or claim related issues. Do not create your own website or start a blog about your experience. You should be as invisible on social media as possible because everything you post and do can and will be used against you.
Q: Should I take calls from the adjuster?
A: Do not take calls from the adjuster because you are being represented. All calls should be referred to an attorney's office, for you do not want to provide the adjuster with any information that can hurt you. It can even be as simple as saying "I'm fine" when they ask you how you're doing. That simple statement can be used against you.
Q: Should I use my health insurance to seek medical treatment?
A: The common misconception is that when you are injured, you should go through the insurance company for the person(s) and/or company who was at fault for your injuries. However, going this route you will likely have difficulty locating a physician who will wait until your claim is resolved to be paid for their services.. You should instead go through your own health insurance, and your primary care physician, to seek treatment. This will ensure you receive the proper medical treatment by a physician who knows you and can direct you to the proper care you require.