Maryland Injury Lawyer Blog

Malpractice Statistics: New Study

Tue, 15 May 2012 16:20:01 -0500

Runaway juries are the big problem in medical malpractice cases. Juries see a sympathic plaintiff and, unchecked by reason, they start writing oversized checks. Liberal judges aid and abet the crime.

This belief has taken deep root in Maryland - and in most states - that has led to the enactment of scores of laws to impede medical malpractice lawsuits. Most notable of these restrictions has been medical malpractice caps. Maryland had a onerous cap that became even more draconian. Why? Because the Maryland State Medical Society’s (MedChi) very skillfully orchestrated what almost everyone now agrees was a a faux crisis.

Trial lawyers have been pretty much outsmarted at every turn by doctors and other tort reform proponents. These advocacy groups have smartly turned the focus away from hard facts and have, ironically, effectively used the quintessential trial lawyer weapons, antidotes, and imagery. Pictures of doctors on highways walking out of the state because of high malpractice premiums. A story about a cute little Doc Hollywood like country doctor who had to close his practice because of frivilous malpractice suits. They have, repeatedly, won. Their lobbyists and PR people have done a great job.

Bullying Plaintiffs' Medical Experts

Tue, 15 May 2012 11:19:32 -0500

Max Kennerly writes a really good post telling the story of how a defendant's medical malpractice lawyer tried to bully the plaintiffs' expert by writing the expert's hospital to express the concern that the expert's testimony might expose the hospital to significant liability.

Malpractice defense lawyers learned this trick at the feet of the master: pharmaceutical companies make a concerted effort to use its influence at major universities to blackball anyone who testifies against them.

At least this story has a happy ending. The trial judge sanctioned the defense lawyer.

UPDATE: I fixed the broken link. Sorry about that.

Appellate Opinions Over Last Few Weeks

Thu, 10 May 2012 13:21:45 -0500

Plaintiff's lawyer names expert two days late. Defendant names experts two months late. Defendant moves to strike plaintiff's expert. The Mississippi trial judge applies some common sense.
Every time I hear talk of the "saving statute" it always ends the same way: "Still, you blew the statute of limitations."
Plaintiff's get a rare preemption win.
A big mistake medical malpractice lawyers make: assuming their experts can speak to causation because they can speak to standard of care.
Tennessee effectively tosses the locality rule in medical malpractice cases.
Defensive medicine rant from defendant's expert in a malpractice case leads to a new trial.

Jury Notes: New Maryland Opinion

Thu, 10 May 2012 11:24:28 -0500

The Maryland Court of Appeals issued its opinion in Nicolas v. State, a Montgomery County criminal case.

The primary issue on appeal dealt with double jeopardy, merger of offenses, and a bunch of other stuff I have long forgot about since law school. But the case also raised on appeal a rather novel issue with respect to juror notes.

I love juror notes. You spend days trying to read invisible juror tea leaves and then get actual tea leaves of what the jurors are thinking. Yet these are illusory tea leaves. My favorite story was when the jury came back with a single question: "May we see Plaintiff's damages board again?"

Annals of Bold Legal Marketing

Wed, 09 May 2012 13:23:17 -0500

I get emails from people marketing legal directories and whatnot all day but I particularly enjoyed the hubris of this one:

Hi Ron,

Your name was passed to me as a potential candidate for a Lead Counsel position on our Personal Injury panel in the Salisbury area. We are currently seeking a qualified attorney who can take additional casework. We do need to verify your qualifications in order to see if you are eligible for this position. This is a four attorney panel and we are only looking to work with one additional attorney. We currently have several candidates in review for the position. If this is something you would like to be considered for; I would need the preliminary info below returned within 24 hours.

How long have you been practicing Personal Injury?

Are you in good standing with your State Bar?

Have you had any client related disciplinary action taken against you?

When is your next available time to have a phone appointment to discuss this position further? Please list a time and date.

Note: Only emails with an appointment time listed will be considered.

Regards,

Colin Richardson
Director of Lead Counsel

Phone: 800-397-3743 ext. 7027
Fax: 800-220-4546
Website: www.lawinfo.com
E-mail: crichardson@lawinfo.com
Need more Clients? www.lawinfolegalmarketing.com

So he sends a cold call email (he left a message, too) agreeing to interview me for the "position" but will only consider me if I quickly follow his explicit instructions and have great credentials (like, you know, being in good standing with the bar). I love the strategy although I have to wonder how effective it is with prospects who have a third grade education.

Progressive Insurance = File Suit

Tue, 08 May 2012 12:33:13 -0500

We sent Progressive Insurance a demand letter in a case where the client had some pretty serious injuries, including 50 staples in her head to close a scalp laceration. Progressive faxed us a letter stating it cannot conclude its investigation until we obtain different bills from the medical providers that are on certain health claim forms, because Progressive wants the individual CPT codes for every visit. CPT codes are numbers assigned to every task or service a doctor may provide to a patient.

Are CPT codes necessary for Progressive Insurance to determine whether medical care rendered was fair, reasonable, necessary, and causally related to the car accident? I think the best way to frame the question is to ask whether a jury can render a verdict without CPT codes. The answer, of course, in that I have never in my life heard testimony that included CPT codes at trial.

Defense Expert Preaches About Defensive Medicine: Appellate Court Orders New Trial

Fri, 04 May 2012 08:15:31 -0500

The Connecticut Supreme Court ordered a new trial this week in a medical malpractice case for an interesting reason: the defense expert testified at trial that malpractice lawsuits drive up health care costs by forcing doctors to practice defensive medicine.

The big issue in the case was whether appropriate standard of care required the defendant doctor to order additional radiological tests, such as X rays, a CT scan, or an MRI, prior to performing the surgery on a young boy to determine whether his tumor had grown since it was first detected. At trial, the defendants’ medical expert testified, of course, that ‘‘the standard of care did not require additional radiology tests." So, this is hardly a case where the doctor is being accused of practicing defensive medicine. But, for some reason, the doctor felt compelled to point out on direct that he would have ordered them himself, if he was treating the plaintiff. Gee, doc, why?

Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that’s wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more—they have another dot in their exposure.

Wait, how many times have I heard about how you should not subject patients - not for nothing, a young boy in this case - to unnecessary radiological testing because it exposes the patient to risk (and the annoyance and hassle of the testing itself)? Yet that risk is of no consequence if, you know, we can show those young whippersnappers and extra MRI.

New Uninsured Bill Becomes Law

Thu, 03 May 2012 15:16:59 -0500

The Governor signed yesterday a bill that allows auto insurance companies in cases where the at-fault driver has insufficient insurance coverage to consent to settlements against the at fault driver without (1) limiting their right to raise any issue relating to liability or damages in an action against the insurer; and (2) admitting as to any issue raised in an action against the insurer.

The Maryland General Assembly made history with the bill: nobody is mad. Insurance companies are ecstatic and trial lawyers are largely indifferent.

You can read about the genesis of this bill here.

Our Attorneys' Fees: 33.3%/40%

Thu, 03 May 2012 09:40:47 -0500

Personal injury lawyers hate talking about their contingency fee agreements with their clients. Me too. But, it is an interesting and important topic, and one that is of great importance to people who are seriously injured and will be hiring at attorney. This post explains how our law firm operates and gives a few thoughts on contingency fee agreements in personal injury cases.

Our contingency fee agreement with our clients in every person injury case is exactly the same. Our firm gets one-third of the recovery if the case settles before a lawsuit is filed. If a lawsuit is filed, or there is an agreement to arbitrate the case, our fee increases to 40%. We have fronted all client expenses in every case we have handled in the last 10 years. If we are not willing to put up our own money, we would not be willing to take the case.

He is a copy of our fee agreement. If you are a client of ours, this is the agreement you executed. We have made very few modifications of this agreement over the years. None of the changes we have made were material.

This is our agreement in every single personal injury case in our office. We have turned down at least two cases (that I know of; I'm sure there have been more) that have culminated in a seven figure recovery because we did not agree to reduce our contingency fee.

Before I explain why we do it this way, let me go the other way and set forth the argument why we shouldn't have a set fee for all of our clients. Contingency fees in personal injury cases are designed to a large measure to compensate attorneys for the risk in time and money they must incur. So, theoretically, in a world of perfect information, you should calibrate the contingency fee with the risk/reward and set the attorneys' fees accordingly. [This is the short version; you can find the long version here.]

Johnson & Johnson/DePuy Hip Implant Recalls: Lawsuit Update

Thu, 03 May 2012 08:55:58 -0500

Patients with DePuy ASR hip implants, recalled in 2010, are making their way to trial. DePuy is a subsidiary of Johnson & Johnson, and they are defendants in a type of class action known as multidistrict litigation (MDL). There are over 6,000 lawsuits, about 4,000 in a federal Ohio court, and another 2,000 spread out in various state courts. There were over 93,000 hip implants recalled.

The hip implants were recalled because they are metal-on-metal implants, and doctors are finding out that the grinding of the metal joints causes metal debris to get loose, harm tissue, and enter the bloodstream. Additionally, the hip implants are failing at a higher rate than other types of implants.

Not all of the cases will go to trial—in the federal case, Judge Katz and the parties are selecting a few model cases to go to trial early. Those model cases are known as bellwether cases, and they are intended to be a springboard for settlement of the rest of the cases. The theory is, by having a few representative trials, the parties get a better idea of what a jury will do with these cases, and they can make informed decisions about whether to settle, and for how much. The federal trial will probably be set for early next year.

In the meantime, there are some earlier trial dates set in state courts. The first trial is set for Las Vegas in December, and another trial is set here in Prince George’s County, Maryland in January, 2013.

State Farm Family Use Exclusion: A New CSA Opinion

Wed, 02 May 2012 12:22:19 -0500

State Farm recorded another win in a family use exclusion case this week in the Maryland Court of Special Appeals, in Stickley v. State Farm.

This is an awful case. Plaintiff was a passenger in a car accident in Montgomery County in which her husband was killed. Plaintiff suffered catastrophic injuries. Plaintiff and her husband had coverage with State Farm, which provided typical coverage for State Farm, at least in Maryland: $100,000 per person/$300,000 per accident. Plaintiff also had a $2,000,000 umbrella policy with State Farm. Plaintiff's lawyer obviously wanted to get to the umbrella.

Regrettably, the State Farm umbrella policy included an exclusion for personal injury claims that result from the negligence of another insured. Plaintiff's lawyer sought a declaratory judgment, claiming that her Umbrella Policy constituted "private passenger motor vehicle liability insurance," voiding the family use exclusion regardless of the unambiguous language of the policy.

The question, ultimately, is whether the personal liability umbrella policy is a policy of “private passenger motor vehicle liability insurance,” thereby requiring an insurer to offer coverage under the umbrella policy for a claim made by a family member in the same amount as the coverage made by a nonfamily member, pursuant to Ins. § 19-504.1.

Maryland Pit Bull Law: A New Opinion

Mon, 30 Apr 2012 09:34:48 -0500

My Revised Opinion on Pit Bulls

Friday, I wrote a blog post about the Maryland Court of Appeals opinion in Tracey v. Solesky that imposes strict liability for pit bull owners and, seemingly, landlords, in dog bite cases. I've offered an opinion generally supportive of the court's ruling and argued that the court should go a step further and hold all dog owners accountable when their dog bites another person (or animal for that matter).

I think I'm right on the latter point. If your dog bites someone and causes serious injury, I think you should be liable for the harm that was caused. But I got a lot of comments and emails from people who strongly disagreed with some of the loose facts that I threw out. While some of these comments were just crazy aunts and uncles peeking out of their attics and basements, others provided real insight about these dogs that demonstrated a far greater appreciation of facts and studies about pit bulls than I have.

New Workers' Compensation/Forseeability Opinion

Mon, 30 Apr 2012 09:11:21 -0500

The Maryland Court of Special Appeals issued its opinion on Friday in WMATA v. Williams, a workers' compensation claim that addresses how far the chain for causation can go before the court decides that a later "related" injury is just too attenuated. Although I do not handle workers compensation cases, I think the legal issues here are interesting and have broader implications beyond workers' compensation cases.

The plaintiff (I know, you call them claimants in comp; it just sounds weird to me) hurt his knee on the job. While attending "work hardening" therapy, the driver of a car in the parking lot put her car in reverse, backed into the plaintiff, resulting in an injury to his other knee for which he also sought workers' compensation benefits.

I can see this from both sides. At first glance, I think it seems pretty attenuated to argue a causal relationship just because you coincidentally got injured going to lunch from therapy. There has to be some difference between causation in fact and proximate causation. This would seem to jive with the Maryland high court's holding in Mackin v. Harris. In that case, the court explained that for every injury, there are innumerable acts whose absence would have prevented the harm. It is the butterfly effect. Going back to Palsgraf, that is not and cannot be how proximate cause is defined. I'm a plaintiffs' lawyer and even I get this.

Strict Liability for Pit Bulls in Maryland

Thu, 26 Apr 2012 10:36:16 -0500

A divided Maryland Court of Appeals has made new law today. In Tracey v. Solesky, the court ruled that in dog bite cases involving a pit bull or cross-bred pit bull mix, it is no longer necessary to prove that the dog in particular or pit bulls in general are dangerous. Is this a win for plaintiffs' lawyers? Is it an anti-dog opinion? Will it lead to changes in homeowners' policies throughout Maryland? With apologies to Steven L. Miles, let's talk about it.

This case involves a pit bull named Clifford who lived in East Towson, just two blocks from York Road and the Towson University campus. While a big fellow like Clifford the Big Dog, this Clifford was a bit more viperous. One day, Clifford attacked two boys on the same day in Towson, Maryland. The injuries to the second boy were serious: he needed five hours of surgery at Johns Hopkins Hospital to address his injuries, including surgery to repair his femoral artery. He spent seventeen days in the hospital, had additional surgeries, and spent a year in rehabilitation. I'm not sure how old the boy was but, either way, it's just an awful thing.

The boy and his parents brought suit against the owners of the pit bull that mauled him and the owners' landlords. The owners of the dog went into bankruptcy and received a discharge of their debt. The only defendant standing was the landlord (Although the Long & Foster lease executed allowed Clifford's owners to keep an "American Bulldog Terrier" on a property that did not have a fence.).

Maryland's Best and Worst Places to File a Personal Injury Lawsuit

Wed, 25 Apr 2012 10:42:40 -0500

Ask the average person or even the average lawyer what they think of forum shopping. Generally, it is viewed as a crime against the people. So let's talk about "forum selection" instead.

Forum selection is clearly important, demonstrated by the frequency with which parties contractually provide for and battle over venue. There are a host of reasons why forum matters so much. There are choice of law, capacity to sue, statute of limitations, caps on damages, and a host of other potential considerations. But for personal injury lawyers, we are forum shopping for one purpose: trying to find a jury panel that would be most receptive to our client's claim.

It spite of all of the hand-wringing about the crime against the people for plaintiffs' lawyers to have - gasp! - options as to where to file a lawsuit, Maryland law defers in some measure to plaintiff's selection as the choice of venue if venue is proper in the forum the plaintiff selects. The Maryland Court of Appeals has repeatedly held that it is "the moving party who has the burden of proving that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.” But, let's face it, the trial court has a lot of discretion on venue. A trial judge can pretty much ignore this rule with impunity and balance the interests as the judge sees fit. We joke that the "weighs strongly" rule is only the law if the motions judge agrees it should be the law. (This was never fully explained to me in law school, let me tell ya.)

If you are a plaintiffs' lawyer, you are practicing two types of forum ~~shopping~~ selection: vertical and horizontal. Vertical forum shopping is moving a case to or from federal court. This is rarely an option in car accident and malpractice cases, but is a common question in product liability cases. The one thing that lawyers just don't seem to understand is the nuances of the diversity of citizenship rule for filing in federal court. Many lawyers wrongfully believe there is diversity jurisdiction if you are suing an out-of-state defendant, even if you are a resident of that state. In other words, if you have a client who is domiciled in Maryland, and file against an out-of-state defendant in federal court, that defendant can get the case transferred to the Maryland county with appropriate venue. It is amazing to me how many lawyers don't understand this.