Ron Miller is a Maryland personal injury lawyer who focuses on serious injury and wrongful death cases involving motor vehicle collisions, medical malpractice, and products and premises liability. This site is designed to provide practical information to both injury victims and plaintiffs' attorneys in the Baltimore-Washington area who want to achieve a fair settlement or verdict. If you are looking for counsel for your case, call him at 410-553-6000

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The Maryland Court of Special Appeals recently handed down its opinion in Rosebrock v. Eastern Shore Emergency Physicians.  The opinion makes defense attorney’s jobs a little easier when it comes to admitting testimony in medical malpractice cases, of what the doctor usually does when the doctor has no recollection of the care provided to the patient.   This post addresses this case and whether this ruling is significant to Maryland medical malpractice law.  I’ll also talk a little about a off the beaten path issue related to agency and personal representation.

Habit testimony in Maryland malpractice cases.

Habit testimony in Maryland malpractice cases

This is a medical malpractice cases where a nurse’s aide slipped and fell, while on duty, at Ruxton Nursing Home located in Denton, Maryland.  After the fall, she complained of hip, knee, and back pain. EMTs arrived and immobilized the woman, then place her on a backboard. She went to the emergency room at Shore System’s Memorial Hospital in Easton, Maryland.  The ER doctor orders an x-ray of the patients’ knees and hips, but there is no record of her examining the patient’s back; even though she complained about her back to the triage nurse.  The x-rays come back negative, prompting the doctor to discharge the patient with minor knee and hip contusions.

Later on, the patient is still experiencing significant pain, resulting in another doctor ordering an MRI. The MRI showed a degenerative disk in the patient’s back, which is later revealed to be a burst/fractured vertebrae. Obviously, this is a bit more serious than a minor contusion, and the patient has to get spinal fusion surgery. Unfortunately, the surgery results in an infection, causing the patient to suffer a brain injury and enter a vegetative state.

This case would have never gotten filed if the injuries were not what they are — the future care costs for a patient in a vegetative state are astronomical — and the plaintiff’s malpractice lawyers thought there was a real shot filing and keeping the case in Baltimore City. Really, this case was probably lost the minute the case was transferred to Queen Anne’s County which is just historically a tough place to try serious medical malpractice cases.

The Evidentiary Issue: Testimony of the Doctor’s Usual Practice

The doctor who treated the patient in the ER testified — probably honestly — that she did not remember the patient.

I say “probably honestly” because I wonder when she was told the patient got an infection and went into a vegetative state.   If no one told her how on earth not?  This is not big news at a small  little Easton hospital? And if someone did tell her, how does she not remember that?

It makes no sense.  But let’s get back on track.  The question in the case — at least the most interesting to me — is whether the trial court err by admitting, as “habit” evidence under Maryland Rule 5–406, the doctor testimony regarding her customary practice when presented with a patient immobilized on a backboard?

The Maryland Court of Special Appeals says you can.  Even if there is not a specific record of you doing something, the court said the Maryland Rules of Evidence permit this information to come in because it is the doctor’s habit. In this case, the trial court let in, as habit evidence, testimony from the ER doctor that established her procedure of examining patients backs when they were brought in on backboards. The court was not persuaded by the malpractice attorney’s argument that an ER back examination is not the same type of subconscious, invariable activity as locking the door behind you or taking the same route to work everyday. They alleged that an examination requires conscious thought and could not be assumed to take place based on habit evidence.

When I put on my medical malpractice attorney hat, this ruling a concern.  Isn’t the doctor essentially testifying that she did something that she really does not know that she did?  It is an outrage!

When I put my reasonable person hat on, the waters get much calmer. Really, the jury is not going to be confused into thinking that the doctor conformed to her habit on that particular case.  The plaintiff’s attorney can cross examine the doctor on her failure to recall.  All she is really saying is this is how I would usually do it.  The jury can digest this for what it is.  I seriously doubt that a different ruling would have made a difference in the outcome.

Goofy Agency Issue That Will Never Come Up Again

Plaintiff’s malpractice lawyer filed a motion for judgment notwithstanding the verdict/new trial which lead to the appeal.  Regrettably, the patient died before the appeal was filed.  So the defendant’s malpractice lawyers did what they do: try to make something of nothing.   The argument?   Patient’s counsel essentially filed a motion for a client he does not have because the patient’s guardian is no longer the appropriate party.

But the wrinkle in this case is that the patient’s attorney did not know that the patient had died and was not alerted to her death until after the appeal was filed.  Because normal people do not call their lawyer when they find out someone they love has died.

Thankfully, the law makes sense most of the time.  So the Maryland Court of Special Appeals adopted the majority rule that the appeal was valid because the agent had not learned of his principal’s death. Given that it was valid, the court also said that the substitution of a new representative was also valid.   So the Appellant won this issue but having lost the issue that really mattered, it was of little consolation.

Interesting case but it is clearly not a game changer. You can find the court’s opinion in Rosebrock v. Eastern Shore Emergency Physicians here.

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expertIn any serious personal injury case in Maryland, you need an expert to testify.  Are there some cases where the injury is so obvious that a medical expert is not required?  There may be.  But anyone willing to take that chance should not be trying tort cases in Maryland.

Why Do We Need an Expert?

An expert has a number of purposes.  First, with a few exceptions, you want to ask the jury to compensate you for the medical bills that you have incurred, even if they have been paid by medical insurance (because the jury is not told that insurance paid for the medical bills).  Accordingly, you need a medical doctor with experience treating that particular injury to testify that the medical treatment that the plaintiff received was fair, reasonable, and medically necessary.

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malpractice8Nearly a quarter of a million Americans undergo total hip replacement  surgery.  All of them do so reluctantly.  This invasive orthopedic surgery is a major operation.  Everyone agrees that there are unavoidable risks involved in the procedure.  These risks include a foot drop (also called peroneal nerve palsy or drop foot), sciatic nerve injuries, and, many believe, RSD even when the surgery is performed properly.

There is no doubt that the fact that it is a known complication of hip replacement surgery does not make for an easy malpractice case no matter how egregious the facts are.  I’m telling you that the surgeon could do the operation with a machete while wearing a Groucho Marx mask and any Maryland insurance company would still mount a defense.  But that does not answer the question posed which is whether it can be medical malpractice when a patient has a foot drop after a total hip replacement.

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rottweiler2Maryland made the right call by getting rid of the “one bite rule,” which created an assumption that dog owners know their dogs can bite.  In doing so, they effectively nixed a court ruling that said that Pit Bulls are inherently dangerous and imposed strict liability for owners and landlords.  At the end of the day though, insurance companies are most interested in these sort of decisions, since they’re the ones paying out dog-bite claims.  And although the dog breeds may not be as big an issue for Maryland legislators anymore, your insurance company may still discriminate and charge you more based on the type of dog that you have.

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insuranceOur main office is now in downtown Baltimore.  I love it here.  I really do.  But driving in Baltimore can be a pain. The daily commute usually involves at least one narrowly escaped crash, jaywalkers deciding to cross right as your light turns green, and the Circulator cutting you off a few times. It’s the price of doing business downtown.

Baltimore’s drivers aren’t the best, but they’re definitely not the worst. That’s because they’re only the second-worst. In 2013, Allstate rated Baltimore’s drivers 193rd out of 194 different cities in the US. D.C. was the only city that fared worse.  There is a reason Baltimore car accident lawyers keep pretty busy.  While this reality makes our drives a bit more perilous every day, it affects city residents’ wallets in a huge way.

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handsfreeMaryland has banned the use of handheld cell phones while driving. Obviously, this includes texting but it also applies to holding a cell phone up to your ear while you talk.

I’m glad we have this law.  It makes sense that you have both hands to drive and react to emergencies.  Right?  It does not take a Rhodes Scholar to figure this out.

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Bringing a medical malpractice case in Maryland is not something that most lawyers are competent to do.  Maryland law makes you jump through a lot of administrative hoops when filing malpractice cases.  Experienced malpractice lawyers have screwed up the procedural requirements for bringing a claim.  Maryland law and its courts are more than willing to hold a victim’s feet to the fire on technical details that really would not be of consequence if the system was truly interested in allowing victims access to justice.

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Last week, the Maryland Court of Appeals decided Falls Garden Condominium Association v. Falls Homeowner’s Association.  It is not a personal injury case. In fact, it’s a case about parking spots. But Falls Garden is actually alawyers2 case about settlement contracts and their enforceability.  If you are a Maryland personal injury lawyer, you need to know when a deal is actually a binding deal.

Typically, counsel on both sides of the aisle assume that you have a binding deal when you agree to the numbers on the claim.  Most settlements really do go smooth, particularly in car accident cases.  State Farm, GEICO and their brethren do not really care about confidentially, admissions, or anything else outside of its standard form settlement agreement.   But malpractice insurers and their doctors and hospitals and product liability defendants often treat settlement agreements like they are reinventing the wheel.

Keep in mind that, as plaintiffs’ attorneys, we never really have those types of things we are trying to slip in under the wire for a settlement.  Our essential term is money and we are not trying to get the defendants to agree to other terms in personal injury cases.

So what this new Maryland Court of Appeals ruling is about is to what extent defendants can impose conditions after settlement and say, “If you don’t like it, we don’t have a deal.”

What This Case is Really About

This case happened because a condo association and a homeowner’s association were feuding over parking spots.  This is because it is a scientific fact that 93.4% of the people involved in condo and homeowner’s associations are stone nuts.  But, after having to resort to litigation, the parties were able to come to a deal on the key issue of the parking spots. They put together a letter of intent memorizing the deal.  The agreement was silent on whether the agreement was intended to be binding.  But the Plaintiff has a change of heart, fires its lawyer and gets another one to try to nix the settlement agreement.  Why?  I don’t know. But remember what I said about these people a minute ago.  Ultimately, both the trial court and Court of Appeals said that the letter of intent was binding on the parties and encompassed the settlement.

The Court’s Logic

Judge Battaglia’s opinion read like a Contracts I Maryland law school exam, explaining the doctrines of “mutual assent,” “materiality,” and the “objective theory of contracts.” But legalease aside, the main question she was tasked with answering was whether both the condo association and homeowner’s association intended to be bound to the letter of intent. She explained two scenarios in which parties would be bound to the letter:

  1. When parties agree on all “essential” terms, only leaving out relevant matters that are not “essential”
  2. When the parties lay every term out on the table and specifically say that they agree to them

She quickly crossed option two off the list, noting that the parties did not explicitly say that they intended the letter of intent to be the final deal. But she did find that, prior to the letter of intent, the parties agreed on the “essential” or “material” terms of the deal, and the letter of intent merely included those terms. The court’s analysis hinged on the terms “essential” and “material.”

Think about this to help: view the contract (letter of intent) as a car. Think of the parking spot lease agreement as the engine: it’s essential to making the car run, it’s the purpose of having a car. Think of the other terms at issue as the spare tire under the trunk: yeah it helps to have it, but it’s not necessary to make the car run.  Here, the engine (lease agreement) was in the car (letter of intent), along with the other essential terms, so it was ready to go, and was binding on the parties.

So how exactly could this tie back into a personal injury settlement?

In a personal injury settlement, there is really one main term that is “essential” and “material:” defendants pay money so that plaintiffs will drop claims.  So going back to our scenario above, let’s say you agree via telephone to accept $500,00 in exchange for dropping the claim.  I don’t think it matters if it is before or after suit is filed.  The defense lawyer does not discuss any other term with you when you make the settlement. But you then get the email attachment with their additional terms.  What are those terms?  Usually it is a confidentially provision that was not asked for in the oral agreement or maybe some language demanding Medicare or other indemnification.

Under this case, the question becomes whether they are material and essential terms of the deal.  I would argue no.  But unless a case comes out that is truly on point, I think you have to be careful. This means you don’t stand down by releasing  your experts, the witnesses you have under subpoena and everything else you need to go to trial until you have an agreement firmly in place.

For contract lawyers and especially for students getting ready to sit for the Maryland bar exam, this case is also a great read.  You can find the opinion in Falls Garden Condominium Association v. Falls Homeowner’s Association  here.

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maryland-lawA U.S. federal court judge made a ruling on some motions that are of interest to Maryland medical malpractice attorneys.  They deal with a motion for summary judgment and, a pet interest of mine, holding defendants feet to the fire when they give garbage answers to requests for admission.

This is a birth injury claim against Defendants Calvert Memorial Hospital of Calvert County, that hospital’s emergency room and emergency room doctor, and the United States.  The government is a defendant for care given at Andrews Air Force Base.

Plaintiff  got prenatal care on Andrews Air Force Base.   A month before delivering, the mom-to-be presented with high blood pressure and had laboratory studies with elevated proteins, symptoms that indicate some risk of preeclampsia.  Three weeks later, the woman gives birth to her daughter at Calvert Memorial Hospital.

Five days later, she presents back to the hospital with high blood pressure,  headache, nausea, “tingly” feeling, and feeling light headed. She was evaluated by the defendant emergency department doctor.  He gave her a head  CT which was thought to be normal and they found no protein in her urine.  She was discharged with instructions to follow up with her OB/GYN which she did the very next day because she was still doing poorly.

The woman went to the OB/GYN at Andrews with a blood pressure of 181/93 and she still had a headache. Her OB  treated the pressure symptoms by prescribing an anti-hypertensive.  She was discharged.  Again. That night, she went to the ER at Andrews and had a seizure in the waiting room.

What happened? She had a brain hemorrhage from preplampsia.

A lawsuit follows.  Many, many medical malpractice lawsuits are contentious.  But malpractice claims like this where there are multiple target defendants almost always lead to World War III.  And this case has delivered as promised: motions to compel answers to requests for admission, oppositions to request for more time, failed mediation, battles of ex parte communications with doctor, Facebook discovery battles, motions to seal exhibits, and so forth.  It is one of those “who loses the slowest” pieces of litigation.

Summary Judgment

The big issue the court was addressed with for this opinion is whether to grant defendant’s motion for summary judgment.  Plaintiff had just one causation expert and one standard of care expert.

This battle on summary judgment is fought deep in the weeds.  They claim the plaintiff’s standard of care expert only testified to his own standard of care, not what the doctor had an obligation to do.  How do they do this?  But nitpicking word choice.  The court did not have much to say about this issue.  Presumably, the court was not going to raise silly technicalities over the clear substance of the expert’s testimony.

The bigger claim was that even assuming the doctor was able to get the patient’s blood pressure down, the plaintiffs’ own causation expert could not say that the alleged negligence caused the injury.   This is one of those things that absolutely terrifies you when you get the motion.  But this is just one of the expert’s opinions and what the defendant did was take one statement out of context and try to get the entire case dismissed as a result. [I got half way through the details but hit delete because it was too specific for the scope of this post.  It is fair to say that the defense had a point… until you considered the full context.]  It is pretty hard to blow these kinds of arguments past a federal court judge.

Requests for Admission Battle

Requests for admission are a good tool for parties in malpractice cases and they are a good tool for judicial economy.  Why more attorneys do not use them is a mystery to me. Actually, it is not entirely a mystery.  One reason no one uses them is that getting anything other than obstructionist answers is near impossible.  But this plaintiffs’ lawyer did what he should do and held plaintiffs’ feet to the fire.  So they modified their ridiculous “vague and overbroad” objections to something more substantive that was still not remotely substantive.   He filed a motion to compel.

Most of the requests were to narrow down the plaintiffs’ medical history.

It is not worth getting too deep into the details of these requests either. But  most of the requests went something like this:

Q: Admit that, prior to the pregnancy, Ms. Ford did not have a history high blood pressure?

A:  This Defendant lacks sufficient information to either admit or deny the information set forth in this request insofar as this Defendant has not been provided with mental health records dating back to adolescence for Angela Ford and therefore denies the same.

The court found that the defendants really could not know with certainty the answer and qualified it appropriately. I’m eager to disagree with the court on this but it is hard.  I think the question could have been better framed by saying “you have no evidence that” because it is a little hard to prove that negative.

It will be interesting to hear how this case resolves.

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settlement3Valuing car accident cases for settlement in Maryland is a challenge. The most important thing in any case is the severity of the injuries. That is probably all that should matter.  But there are many more variables that drive how much money the insurance company will offer to settle an injury claim before a lawsuit is filed.  This is a list of 12 factors that really matter in determining the settlement value of any auto collision injury claim:

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