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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Medical malpractice kills 400,000 people a year in this country and injures 4 million more.  The media is now starting to focus on this story, as we just talked about on Monday after the Baltimore Sun’s story on negligence in Maryland hospital.  Stories like this do help plaintiffs in medical malpractice cases.  Why?  Because many of us still view doctors as infallible and that wall of invincibility is being to fall.

So, then, why is it so hard to find a medical malpractice lawyer in Maryland who will take your case?

Joanna Shepherd, a law professor at Emery University, conducted a national survey of medical malpractice attorneys that explored, among other things, why malpractice attorneys reject cases.   

Reason for Rejection Case Percent of Respondents
Unclear causation 19.25%
Unclear evidence of malpractice 29.11%
Case is unlikely to settle 0.94%
Insufficient damages expected from trial or settlement 38.73%
Complexity and expense of bringing the claim 11.74
Hospital not involved in medical malpractice 0.23%

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complaintThere are a variety of motivations that impact the victim’s decision to settle or go to trial. It is worth underscoring: it is the victim’s decision. It is not a decision for the attorneys or the family. The victim has to choose the path that is best for them.  There are certainly some Maryland injury attorneys who do not see it that way.  It really is tempting — I’ve felt it — to think you know what is best for your client.  I’ve settled cases where I was convinced the offer would double in a matter of weeks.  But as a lawyer, your job really is to give your client the information to make an informed choice.

Here are the three key factors victims need to consider: risk, time, and emotional strain.

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malpractice 4The Baltimore Sun published an important front page article yesterday on hospital errors in Maryland.

The premise of the article is a stunningly simple yet different approach to medical mistakes in Maryland hospitals.  It goes like this.  We have an estimated 400,000 who are killed every year by medical malpractice.  How are Maryland hospitals faring?  We don’t know.  There is a major epidemic that kills enough people in this county to fill Camden Yards 10 times a year.  Malpractice that causes serious injury could fill Camden Yards over 100 times (4,000,000) a year.  Yet we have no quality way of estimating how Maryland is faring.  Why is this? The hospitals, doctors, and insurance companies make no effort to provide this data to us.

Said differently, we are all — particularly those of us that are young or old — vulnerable to this grave risk.  We face other risks of course.  Heart disease, cancer, motor vehicle accidents, diabetes, all pose great risks of death.  With these risks, we have the ability to sift through the data, understand the risks, and do what we can.  We quit smoking, eat better, wear seat belts, and so forth.

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efilingWe have been hearing for some time about the Maryland Electronic Courts (MDEC) project that will eventually allow for electronic filings, allowing Maryland lawyers to get the same modern conveniences of electronic filing that we have enjoyed in federal court for quite some time. This type of integrated case management system — between circuit, district, and appellate courts – will really change the practice of law on an administrative level and will hopefully allow us to speed past some of the filing related bottlenecks we have in pushing cases forward.

No more paralegals and couriers jumping  into their cars and racing to the courthouse to meet filing deadlines.  We don’t do a ton of the “last minute rush” stuff here but it does happen occasionally.  I have the courier bills to prove it which always annoy me to no end. Anne Arundel County somehow got picked to kickoff the e-filing program. Starting Monday, September 15,2014, lawyers can register for e-filing to get ready for the MDEC’s launch in Anne Arundel County. When this does launch, and it won’t be fully operational for year, it is not going to be optional for lawyers.

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malpractice5One of the great selling points of caps in medical malpractice cases is that it encourages doctors to come to your state to practice.  Every state, particularly in jurisdictions with rural areas where access and availability to doctors is a prominent concern, want to attract a healthy supply of doctors to their state.  The thinking it is that doctors will flee to states where the litigation climate is more favorable to doctors.   A new study suggests this oft cited canard support tort reform is 100% true.  But not in a good way for patients.

A Notre Dame economist published a study titled “Medical Malpractice Reform, the Supply of Physicians, and Adverse Selection,” Journal of Law and Economics” that found that “when a county’s neighboring state passes a cap on noneconomic damages, the supply of physicians falls by 4 percent” in that county.”   Tort reform advocates are nodding their heads vigorously.

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The Maryland Court of  Special Appeals decided a chain reaction automobile tort case last week in Cooper v. Singleton that leaves me confused about the current state of Maryland law as to how we communicate our presumption of negligence rule to juries in rear-end collisions… and hoping the Maryland high court steps in to clear up the confusion.rearend

This case involved a five car chain reaction car crash in Montgomery County.Four cars had stopped at a red light when a fifth car, driven by the defendant, crashed into the fourth car. The cars hit each other moving forward as you would expect that they would all the way up to the first car.   It must have been a pretty hard hit, obviously.
The plaintiff in this case is car #2; the defendant is car #4. The case goes to trial before Judge Terrance McGann in Montgomery County.  After a three day trial, the defendant wins.
Wait!  What? How do you lose that case?
But I think there was a viable defense to this case. Defendant’s argued sudden incapacity because he suffered a grand mal seizure.  The defendant’s treating nuerologist testified that he was taking medication to control his seizures and it was reasonably believed that the medication would prevent future seizures.  But, unexpectedly, he suffered a seizure that left him incapacitated.

What is needed for sudden incapacity defense in Maryland

The Maryland Pattern Jury Instruction-Civil 18:9 sets forth the what is needed for defendant to make a sudden incapacity defense in Maryland:

A person has the duty to take reasonable actions to be sure that he or she can safely drive a motor vehicle. A failure to do so that results in a motor vehicle accident is evidence of negligence.
However, a person may defend by showing that there was a sudden and unforeseen incapacity that rendered him or her unable to avoid or prevent the accident causing the injury. Unforeseen incapacity is one that a reasonable person would not have any reason to anticipate.
This instruction is most likely what won the case for the defendant.  But this issue is not what the case is about.

Presumption of negligence in Maryland

There is one Court of Special Appeals case that gets all of the attention — and love — from plaintiffs’ attorneys in rear end accident cases: Andrade v. Housein.   Plaintiff’s counsel in this case sought a jury instruction consistent with the language of this case:
An evidentiary presumption of negligence arises where a motor vehicle is lawfully stopped on a highway awaiting for traffic to clear before an intersecting highway and that vehicle is suddenly struck from behind by another vehicle, resulting in personal injuries and property damage to the driver and the front vehicle. From that presumption, a trier of fact may reasonably infer negligence on the part of the driver of the following vehicle.
The presumption, however, is rebuttable. The procedural consequences, once a prima facie case is established, require that the person against whom the presumption is directed assume the burden of going forward with the evidence, but the burden of persuasion remains with the plaintiff.
This is not a pattern jury instruction.  But not all Maryland law is covered in a the pattern instructions.  This is certainly a clear statement of the law in Maryland.   In denying this instruction, Judge McGann said:
I’m [not] going to expect a jury to understand that theory. This is for lawyers. This is for judges. I’m not going to give that instruction. There’s no way they’re going to understand that … I don’t dispute it’s the law. It’s a question whether I instruct. Instructions are to help the jury.

Judge Moylan’s opinion

Judge Moylan, who graduated from college in 1952, continues to write opinion with a wit and style that entertains me as much as Judge Harrell does.  I try to write these posts in a way that entertains a bit but I’m a hack compared to Judge Moylan and I know it.  He also writes with the directness of a 21st century blogger which I really appreciate. He even uses exclamation points which is pretty risque for appellate opinions.  But I really disagree with the decision to affirm the trial judge in this case by limiting Andrade v. Housein to its ostensibly unique facts.   I think he wildly misses the forests for the trees.
First, the Court of Special Appeals refuses to concede that Andrade creates a rebuttable presumption in Maryland that if a stopped vehicle is rear ended, the rear-ending driver is negligent.  But even the trial judge agreed with that premise.  It comports with what many other states — Florida, Virginia, Rhode Island and New York which I found in a quick Google search — with good reason: you should not have to proof negligence when someone hits you in the rear while your vehicle is stopped.  Ask you average Marylander on the street — they assume this is the law.
The Court of Special Appeals says, echoing the trial judge, that the law is for lawyers and judges. What is the point of having a law if the jury cannot apply it?   The court slices and dices Andrade to the point where it could only be applied to the exact facts of that case.  Courts only do this when the want to distinguish a case.  Otherwise, broad principles of law articulated by prior opinions are always given their just due.
The court also argues that Maryland Rule 5-301 and the Maryland Code of Evidence states that a presumption in a civil case does not shift the burden of ultimate persuasion to the party against whom the presumption is directed.  I read the court’s long analysis of this questions of burden of proof versus burden of persuasion.   I’ll concede I have spend zero time focusing on this issue.  I get the impression the parties to the case did not either.  But let’s no confuse the issue.  Plaintiff’s lawyers are asking the judge to tell the jury what the law is.
Finally, the court’s opinion argues in what can only be described a “dicta squared” that the plaintiff was better off not have the instruction.
The plaintiff suffered no prejudice from Judge McGann’s disinclination to give the requested supplemental instruction based on Andrade v. Housein. Indeed, had Judge McGann given the instruction, it could have been fatal to the plaintiff’s cause. It would have told the jury that the burden of ultimate persuasion, that the plaintiff wanted to be switched to the defendant, “remains with the plaintiff.” Silence on the subject, from the plaintiff’s point of view, was the exact opposite of prejudice.  It was a windfall.
We can quickly dispense of the “it was a windfall” argument.  Why do I know this? Every single plaintiffs’ attorney trying this case would have asked for the exact same instruction.

What we take from this case

First, I think this case is a loser for the plaintiff no matter what happens.  Granted, I don’t know all of the facts so I’m talking a little bit outside of school.  But you have the defendant’s treating neurologist standing behind him and saying he never could have expected to have this seizure.   If I’m on the jury, I’m going to have to swallow and say this guy is not negligent.  I wish there was some way to find the insurance company responsible in a case like this.  (I’ll bet $20 bucks it was State Farm.)  But there is not.
This case does not kill Andrade v. Housein.  I don’t think judges are going to start giving directed verdicts in rear end accident cases where the plaintiff has no idea what happened.     What it does is give judges the option of  not telling  juries what the law in Maryland with respect to this presumption.  This is the wrong path and the Maryland Court of Appeals ought to clean it up by making clear and unambiguous law about just how the jury instructions should read.
I can’t stand all of these unnecessary battles with trial judges over areas of law that should be crystal clear. On some level, I care more about someone just giving us a clear law than what the law is.  Now the path is all muddy which means it is going to be whatever the judge wants to do and we are going to have to research and write to battle over an issue that should already be written in stone.
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hipaaOne hot button issue in Maryland medical malpractice cases today is the circumstances under which defense lawyers can speak to Plaintiff’s treating doctor.  For years, this was not an issue.  If a defense lawyer wanted to talk to a treating doctor, she would just pick up the phone and call.  This was a powerful tool for malpractice defense lawyers because (1) you always want to know what a treating doctor — or any witness for that matter — is going to say before the doctor testifies, and (2) it gives the defense lawyer a chance to participate in shaping the doctor’s testimony.

HIPAA changed all of this in 1996.   HIPAA requires that a doctor “may disclose protected health information in the course of any judicial or administrative proceeding [i]n response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.”  45 C.F.R. § 164.512(e)(1)(i).

So that settles it, right?   In most states, yes.   If this is current, 38 states prohibit ex parte conduct and another six permit informal interviews with significant restrictions.

Why This Fight Continues in Maryland

Yet in Maryland, the battle still rages.  Defense lawyers argue that under Maryland law once a patient chooses to place his or her medical care and treatment at issue in a civil action filed against a health care provider, all health care providers shall disclose all information in medical records and/or health related information to another health care provider’s legal counsel.   Specifically, Md. Code Health Gen. § 4-306(b)(3) provides a statutory right to ex parte communications.  Actually,  I think the statute provides only for the disclosure of written medical records, as they are defined in Md. Code Health Gen. § 4-301(h).

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depressed manIn Young v. Swiney, the U.S. District Court of Maryland was presented with an interesting, albeit depressing question: Can a suicide, two years after a truck crash, be causally related to the accident?

The Facts

There was no dispute as to liability.  The defendant trucking company sought summary judgment on plaintiffs’ wrongful death claim, alleging that there was no evidence that a reasonable jury could rely upon to establish this suicide, two years after the accident, could be causally related to the crash.   Defendant also sought summary judgment for economic losses after the suicide claiming that his death was, “a superseding and/or intervening cause” of his death that acts as a bar to future economic losses.   As creepy as that argument is, it does logically follow that that if the crash did not cause the suicide than the economic losses should, as a matter of law, be terminated as well.

Sometimes, the injuries from a motor vehicle collision can set a life that is on course, very much off course.  I’ve seen it happen too many times.  As plaintiffs’ lawyers, we often forget we are seeing people at possibly the worst moment of their lives.  The decedent’s life in this case fell right along this path.  His life got turned upside down when he was rear ended by defendant’s eighteen-wheel tractor trailer truck in Cecil County back in 2010.   Among his injuries, notably for what happened later, was a head injury.  He could not go back to work and got fired from his job because of the accident, because Maryland law inexplicably makes getting hurt in an accident a fireable offense.

He started seeing a psychologist after he lost his job.  He told his the psychologist that he was extremely depressed from the accident.  His temper flared easily, a common side effect of even a mild traumatic brain injury, to the point where his wife and two daughters had moved to Florida for a time to get out of his path.   Eventually, he killed himself.

Court’s Ruling

Clearly, courts are loathe to jump, wary of “such and such caused my suicide” cases.  The plaintiffs here would have close to zero chance of collecting a life insurance policy that claimed the accident was the true cause of the death.   There is a view, as the court pointed out, that suicide is a common law crime and bars any wrongful death claim.

Thankfully, Maryland law has not adopted this rule and utilizes the more flexible rule that it is a question of proximate cause given all of the facts and circumstances.   In this case, the plaintiffs’ are proffering a medical expert to opine that it is more likely than not that had this accident not occurred, this man would not have committed suicide.

My Take

Much earlier in my career, I was involved in the SSRI litigation involving claims that antidepressants were paradoxically causing some people to commit suicide.   The one thing I learned from meeting with some of the leading experts on antidepressants and suicide throughout the country is that suicide is a very complicated thing.   These are tough cases and plaintiffs here have not won — they just made it past summary judgment.  The trucking company is going to pick through this guy’s life and explain all of the other reasons why this accident was not the reason he committed suicide.

Still, in the final analysis, it boils down to this: would this man have committed suicide if this accident had not happened?  Granted, I know little about this case.  But you have to guess that with the man’s treating psychologist testifying that this is the driving cause, plaintiffs have more than just a puncher’s chance.

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shutterstock_97357133In Valentine-Bowers v. Retina Group of Washington, a new medical malpractice case decided by the Maryland Court of Special Appeals,  the plaintiff alleged that her physician failed to monitor a problem with her eye that caused her to lose vision in that eye.  It is a serious injury for a young woman.  But this case is not about the underlying merits of the claim, it is about the the things you have to do to get a medical negligence claim to a jury.

The case starts with the defendant serving discovery on the plaintiff.  The plaintiff did not respond in a timely fashion.  Judge Douglas R. M. Nazarian, a relative newcomer to the court, acknowledged this failure is commonplace.

Her failure to comply with the deadline is unremarkable—parties routinely miss this deadline and litigators know that absolute compliance is not always possible (although they do, and should, expect at least a request for an extension and a good faith deadline in return).

But, obviously, that is not the end.  Two months pass.  Nothing.  So defense counsel sent the usual “c’mon” letter. Then another one.  Then a motion to compel. Then a deposition notice, and she does not appear.  Plaintiff’s counsel really does not respond to the letters or the motion.

What is going on here?  I don’t know.  But Plaintiff’s counsel said that the plaintiff, herself, is to blame by failing to stay in contact with the lawyer.

Let’s assume that is true as Judge Nazarian’s opinion does.  It puts plaintiff’s counsel in a tough spot, to be sure.  I have had clients disappear after I had sent a demand package to the insurance company.   Now, if I come clean with the insurance company and say I can’t find my client, that is a sure tell to them that my client is unlikely to make it through the litigation process.   So what do I do?  I just ignore their calls until I find my client.  It makes me feel like an unprofessional jerk but I don’t really think I have a choice.

But this is a far cry from dealing with an absent client in litigation where the statute of limitations has passed.   Now let’s admit, this opinion does not give us the whole story.  But I think absent compelling circumstances, you can’t just ignore defense counsel in hopes it goes away.  I think the first thing to do is try to get relief from defense counsel.   You can’t just ignore motions and deposition notices.  Second, I think you have to run to the court and say, “Can I get a little latitude here while I try to track down the client?”  Even filing a motion to withdrawal from the case would slow the train down.

In any event, eventually she gets back in touch and they get unexecuted answers to discovery out on the deadline imposed by the court and executed responses a few days later.  Now, I would think that would do it in most cases.   But the P.G. County Circuit Court judge saw it different.   The judge (I’m not sure who it was) correctly applied the five factors articulated by the Court of Special Appeals in Hossainkhail v. Gebrehiwot:

  1. whether the disclosure violation was technical or substantial;
  2. the timing of the ultimate disclosure;
  3. the reason, if any, for the violation;
  4. the degree of prejudice to the parties respectively offering and opposing the evidence;
  5. whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.

These are good rules and both the trial court and later Judge Nazarian dutifully go through these factors as Maryland law requires.   But I don’t think anyone really cares all that much about the factor.  What it boils down to is if the plaintiff completely ignores the discovery process and then finally gets its act together a few days after the court imposed deadline, should that be enough to keep the case alive.  I can see where the court would be more than furious.  I really do.  But I can’t see not giving the plaintiff a chance given that there is no real prejudice.  Both the trial court and the Court of Special Appeals believed that the delay itself is prejudice.  I don’t think they would take the position in a different context.  It is just like how someone you like can say something and it is fine and someone who annoys you says the exact same thing and it drives you mad.  But if we are going to analyze facts honestly, we have to admit that there is no real prejudice here.  I think that should be the touchstone in the decision.  Real definable prejudice, not the speculative prejudice of “memories fade” over time so there could be prejudice.

I also think a double standard applies here.  I don’t think a court would likely give a plaintiff summary judgment under the same exact facts.   Judges loathe to tell defendants that they cannot put on a defense, no matter how bad they screw up in discovery.  I don’t disagree with this really.   It does seem unfair in a way to impose liability on a party because their lawyers royally screwed up their case.  But the same reservations should also apply to dismissing someone’s effort at getting justice.   Here, a part of the problem was the woman was not cooperating with her attorney.  But she just lost vision in her eye.  We are not catching her at a great time in her life.  Let’s cut her a little slack.

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skypeMaryland courtrooms are slow keeping up with the times.  This is not an altogether bad thing.  What happens in the courtroom matters and we should probably let society work out the kinks of technology and understand all of the potential unintended consequences before our judicial system leaps into the next big thing.

That said, geez.  It is 2014.  Can we get wi-fi in the courtrooms?  I can’t even get my phone on the Internet in some courthouses, like P.G. County Circuit Court  not to name any names.  We can e-file pleadings in federal court now and will be able to in state court at some point.  But we are about 15 years behind the curve.  Let’s not let the world get a full generation lead in technology over our courts.

One of the big issues that is increasingly getting attention is witnesses testifying at trial without actually showing up at trial.  Skype is the primary method that gets talked about, probably because its low cost makes it the most desirable.

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