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 410-779-4600

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The Maryland Court of Special Appeals recently decided Johnson v. Franklin, a lead paint case with an unique discovery issue.

The Underlying Case

I’m glad you kept reading, you law scholar you!  Anyway, these are the facts. A lead paint case is filed in Baltimore City Circuit Court pertaining to a property where Plaintiff used to live. The property had long since been rehabbed and sold.  Therefore, Plaintiff could not just walk in the door to do the lead-paint testing, that he claimed he needed for his lawsuit. As a result, Plaintiff sends a letter to the current owner, asking if he can stop by for some “non-invasive environmental testing” of the property. The owner does not respond, which prompts the plaintiff to file a complaint to perpetuate the evidence. Specifically, he seeks an “equitable bill of discovery,” which would grant him a right of lawaccess to the property. The current owner does not respond to the motion but appears at a hearing pro se.  The court denies the motion, because the current owner’s privacy interests outweighs the Plaintiff’s need to conduct testing.

This makes little sense to me.  How burdensome is it to have your property tested?  I can’t figure out why the property owner would fight it either. Plaintiff agrees and appeals to the Maryland Court of Special Appeals, alleging that the trial court abused its discretion by denying the complaint/request/petition.

Equitable Bill of Discovery

The Court spent a decent amount of time talking about what a bill of discovery was in the first place. Unlike the Federal Rules and most State Rules of Civil Procedure, the Maryland rules do not have a specific mechanism that parties can use to gain entry upon the land of another to inspect potential evidence. Without such a mechanism, parties can effectively be denied the right of access to the courts.

An equitable bill of discovery is (you guessed it) a equitable remedy that has been used for hundreds of years. The problem is that the Plaintiff was not seeking the bill of discovery against the defendant in his lead paint case;  he was seeking it against a third party. All of the Maryland authority that he cited provided a means to gain a right of access to the opposing party, not a third party.  This scuppered a lot of what he had in his brief. Still, the court recognized that he intended to seek a pure “equitable bill of discovery,” which is traditionally used against non-parties.

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facebookSocial media is great. It’s an excellent way to maintain contact with old friends.  It’s an excellent place to get news before any TV station gets it.   You can even follow Miller & Zois on Facebook.

But it is a scary new world.  How many times have you heard about someone getting fired or disciplined because of an ill-advised post or comment? How many politicians have resigned because they thought it was a good idea to send a “private” message to a intern?  How many people have been arrested from a tip found on social media?

Facebook and other forms of social media can also spell trouble for lawyers, too.  In New Jersey, two attorneys were recently sanctioned for sending a Facebook friend request to another party.

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Two companion uninsured/underinsured motorist cases out of Cecil County were decided by the Maryland Court of Appeals last month.  The take home message for Maryland lawyers handling uninsured motorist cases: if you don’t follow the rules by settling with the underlying carrier, the court is not going to let you off the mat.  It is the ultimate in form over substance.  I disagree with the law, but I can’t quibble with the court’s 6-1 decision.  Really? Insurance companies should not be trying to eviscerate insurance agreements with their own clients, because their lawyers screwed up.

Both cases, Woznicki v. General Insurance Company and Morse v. Erie Insurance Exchange involved the typical scenario; in which the tortfeasor’s liability insurance tenders the policy and the plaintiff’s attorney accepts, while intending to make an uninsured motorist claim.  This is a special set of facts. In this case, the insured’s UM policy explicitly stated that they had to bless any settlement with the tortfeasor’s liability insurance carrier  — or pony up the policy themselves —  to activate the UM coverage after a release was signed.

The Cases

In the first case, Woznicki, the victim had GEICO UM coverage.  The insurance company required notification and consent from GEICO of any settlement that would exhaust the tortfeasor’s liability insurance limits.  Plaintiff sues the other driver, who agrees to settle the claim for policy limits.

Here’s the problem: on the same day she settles, her attorney sends a letter to GEICO saying that the tortfeasor had limited coverage, nothing else. A few months after the settlement with the liability carrier (Nationwide), they allegedly received oral permission from GEICO to settle the claim via phone call from a claims adjuster.  This is not the law.  But they follow up with a letter that says that the claim against Nationwide has been “tendered,” and ask for permission to settle the claim that they already settled.

coa

Ask for forgiveness, not permission right?  Coffee mug adages can let you down.  GEICO rejects their letter, claiming that the “consent to settle” term of their policy was not followed, thus they cannot provide any UM coverage. Plaintiff filed a breach of insurance contract.  GEICO successfully moves for summary judgment.

In granting summary judgment, the trial judge makes three important points which serve as the bases of the appeal: 1) The terms of the insurance policy and Maryland law were not adhered to by the plaintiff (by excluding GEICO from settlement negotiations with Nationwide); 2) The alleged phone conversation between Plaintiff #1’s attorney and the GEICO adjuster did not waive GEICO’s right to be informed of the settlement and 3) GEICO did not have to show prejudice caused by Plaintiff #1 failing to obtain consent to settle the case against the liability carrier.

The second case, Morse, is similar except that her attorney sent the request for permission to settle to the wrong address. While this blunder was getting sorted out, the Plaintiff became impatient and accepted the full value of the tortfeasor’s liability coverage. Once again, the UM carrier (Erie in this case) denied UM coverage and won at trial and again on appeal when COSA said that “obtaining consent to settle is not the equivalent of providing notice,” only the latter of which was done here.

Compliance with MD Settlement Procedure

Judge Greene wrote the majority opinion for a court that ruled in favor of the GEICO/Erie.  After a brief history lesson about UM coverage in Maryland — one that is worth reading —  the court dove into what this case is really about: compliance with two insurance statutes and the rationales behind them. Judge Greene was up front about the purpose of the UM insurance statutes: to protect an injured person’s right to make a claim against the liability carrier AND the UM carrier, something that was often difficult prior to the enactment of the two statutes at issue here. Those statutes, Md. Code Insurance, § 19-511 and § 19-110, lay out the procedure that Plaintiffs  should have adhered to when settling their liability claims. Namely, notifying and obtaining consent from the UM carrier before accepting a settlement from the liability carrier.

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The Fourth Circuit decided a case that addresses an interesting insurance law question; while also touching on another issue that vexes medical malpractice lawyers in Maryland.  The 4th Circuit overruled a great judge, Federal Magistrate Jillyn K. Schulze, who awarded summary judgment against a suspended surgeon for making a disability claim.

new 4th CircuitWhile cursed with a boring name, Certain Underwriters at Lloyd’s, London v. Cohen, is a case that has some interesting facts.  The Plaintiffs are underwriters at Lloyd’s of London.  The defendant was a general surgeon in Bethesda, who was suspended for three months from practicing medicine in Maryland, because he violated the standard of care, kept inadequate medical records and grossly over-utilized health care services.  I’m not sure of all the details, but they are pretty strong allegations against a surgeon.  Anyway, the insurers wanted to rescind a disability policy, because the doctor made material misrepresentations on a disability policy, which he later sought benefits.

What were the misrepresentations?   There were three questions at issue.  The doctor answered “Yes” to the question, “Are you actively at work?” six days before he signed the policy application.  He represented that his “occupation” was “surgeon” and his “daily duties” were “surgery.” He responded “No” to the question, “Are you a party to any legal proceeding at this time?” and he also represented that he was not “aware of any facts that could change your occupation or financial stability.”  In fact, he added, gratuitously as Federal Magistrate Jillyn K. Schulze would later point out, that he was “opening a D.C. Office.”

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What boggles peoples minds is the fact that a large number of Maryland car accidents that lead to death and disability settle for $100,000 or less.  Some settle for $30,000 in case where the liability is clear or even if the defendant was drunk out of his mind.

How to get more than the auto insurance policy limits?

How to get more than the auto insurance policy limits

How does this happen?  In many cases, the key to recovery is finding insurance.  You have to know where to look and you have to know how to look.  But sometimes there is nothing there even when you look in the right places.

Okay…so how can this happen?  Maryland requires that each licensed vehicle be covered by auto insurance of some kind.  But the  minimum auto liability insurance required is quite low in relation to the [30] potential that a vehicle will inflict harm. Consequently, a driver may be hit by another car that has as little as $30,000 in maximum liability coverage ($15,000 per person/$30,000 per accident). The non-negligent driver may have been severely injured by another driver who has few personal assets, in which case, even prompt payment of the negligent driver’s $30,000 in liability insurance will do little to compensate the severely injured non-negligent driver. As a result, every driver is constantly at risk of being severely injured by another, largely impecunious driver with low policy limits.

The first path to getting more than the at-fault driver’s policy is to find more coverage for the at-fault driver or use your uninsured motorist coverage. In these cases, the only way to get more than the insurance policy limits is to (1) get a verdict, and (2) the insurance company fails to offer the policy limits.  This happens more often than you think because insurance companies are willing to delude themselves about trial risk.  Insurance companies, at least in Maryland, do not make it difficult to collect more than the policy limits when this happens. Continue reading →

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A new study on emergency room malpractice was released today that looks at why ER doctors are so frequently sued in misdiagnosis claims.

The study was conducted by The Doctors Company, which is a big insured of doctors, hospitals and physician groups.  It is easy to roll your eyes because you know these folks come with an agenda. And of course their conclusions are euphemistic distortions or maybe downright fictions, but I take most of the data at face value, because I can’t see the point of cooking the relative malpractice incidence rates.

bloodpressure4The study looked at 332 closed emergency room malpractice claims.  Four types of cases made up the lion’s share of the cases:

  • Misdiagnosis: 57%
  • Improper Management: 13%
  • Improper Treatment: 5%
  • Failure to Order Medications: 3%

Misdiagnosis is the biggest culprit.  The study says 57%; I would have put this number at 75 percent. Misdiagnosis includes the failure to make a differential diagnosis and the failure to consider all of the symptoms of the patient’s condition.  I would love to see data on “just didn’t know” versus “just didn’t take the time” because my very unscientific guess is that they are probably equally balanced.  But the study does take a roundabout shot at trying to answer this question, breaking up misdiagnosis cases like this:

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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.

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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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