Maryland Injury Lawyer Blog

After my blog entry about New Hampshire verdicts a few days ago, I received a few emails from Maryland lawyers asking if I knew the data for Maryland plaintiffs. In Maryland the accident victim is successful at trial in 83% of auto accident personal injury cases. This is a very high success ratio given the fact that among the remaining 17%, many are brought by lawyers that did not understand what factors were required to bring a successful personal injury case. My wife, Lisa Miller, used to defend cases as an attorney for Nationwide Insurance. She handled too many cases where there was a fatal flaw in the case: the Plaintiff did not have an expert, the liability argument would be illogical, etc. I have to think these types of cases make up a decent portion of the 17% of the auto accident cases in Maryland that are not successful. In personal injury cases generally in Maryland, which includes medical malpractice, slip and falls and other non-vehicle accident cases, the average falls to 69% (as opposed to 55% nationally).

In terms of value, the data is also interesting. Nationally, the median jury award in a personal injury case is $38,461. In Maryland, the median compensatory award in personal injury trials is far less: $12,813. Specifically, in auto accident cases in Maryland the median verdict is $11,277. I think this data is a bit misleading because too many small claims type cases end in front of juries in Maryland. Defense lawyers have the ability to remove cases to Circuit Court if the plaintiff seeks more than $10,000 (but less than $25,000, which qualifies it for District Court) which they frequently do, primarily to torment plaintiffs' personal injury lawyers.

The story in medical malpractice cases if very different. Plaintiffs prevailed in only 8% of medical malpractice cases in Maryland. This number is misleading because the best malpractice cases typically settle. The last data I saw on average medical malpractice settlements in Maryland came from The Daily Record on April 28, 2006. This article quoted T. Michael Preston, executive director of MedChi, the Maryland state doctors' association, who said that the average paid medical malpractice claim in Maryland was $387,077 in 2003. Although his source was Medical Mutual, the leading medical malpractice insurer in Maryland, I do not have any reason to quarrel with this data. According to Jury Verdicts Research, the average jury award for successful medical malpractice cases is $808,772. I have never seen data that breaks these settlements or verdicts by county but I think we can assume that the larger jury awards in medical malpractice cases in Maryland are in Baltimore City and Prince George's County.

At our Maryland Attorney Help Page we offer a number of sample motions, including a number of motions in limine and responses to motions in limine we have filed in personal injury cases in Maryland. John Day on his blog Day on Torts provides his motion responding to Defendant's motion to exclude Plaintiff's economist's testimony in a wrongful death case.

You may not have this exact issue in a case anytime soon, but a well-written motion in limine is always worth reading and bookmarking for the future when this issue or a similar issue may arise.

One of the driving forces behind tort reform in medical malpractice lawsuits in Maryland and around the country is that the malpractice claims are usually frivolous and result in undeserved compensation for patients and their medical malpractice lawyers. This month, the New England Journal of Medicine addressed this issue in a study of 1,500 randomly selected malpractice cases. The neat thing about the study is that impartial doctors reviewed the experts' opinions in the pending cases and then assessed whether each patient was injured and, if so, whether medical malpracitice was the cause of the patient's injury. In a way, they allowed the independent experts to act as judge and jury.

You might expect the impartial reviews of doctors to be biased toward findings of no medical negligence. But the study found that 63% of the injuries were found to be the result of medical malpractice. More importantly, the study found the system generally works. Of valid medical malpractice claims, most received compensation. In contrast, where the impartial doctors found no medical malpractice, those patients generally did not recover. The study further found that healthy people successfully suing physicans for medical malpractice is very uncommon and is far outnumbered by instances where medical malpractice goes unreported.

This is another blow to the claim that we need medical malpractice reform in Maryland. After claiming a crisis of unprecedented proportions last year Medical Mutual, Maryland's largest medical malpractice insurance carrier, announced that medical malpracitce insurance rates would not rise in 2006, presumably because claims fell from $93 million in 2003 to $78.5 million in 2004.

I think most Maryland doctors have realized this and have begun to focus their energies towards reform of their negotiating rights with health insurance companies as to the rates of compensation for medical services. Time Magazine wrote an interesting cover story on this last week.

Other interesting findings in the study:

Continue reading "Medical Malpractice Claims Study" »

Earlier today I discussed a new New England Journal of Medicine Study on medical malpractice. The Chicago Injury Law Blog mentioned in its blog today a new book written by a Connecticut law professor that concludes that the "the real problem is too much medical malpractice, not too much litigation." Professor Tom Baker's "The Medical Malpractice Myth" relies primarily on medical journals to refute the contention that plaintiffs' medical malpractice lawyers are the force behind the increase in medical costs. Professor Baker's study also concluded that tort reform has had a detrimental impact on overall patient safety.

I have not read the book, but the reported conclusions are consistent with the New England Journal of Medicine article I discussed earlier today.

Jury Verdict Research reports that the median compensation award in personal injury trials in New Hampshire is $45,000. This is much higher than the national median of $38,460. Also, New Hampshire personal injury victims are more likely to prevail at trial. New Hampshire plaintiffs obtain a recovery in 63% of cases that go to a verdict, as opposed to the nationwide recovery probability of 55%.

In Maryland the median personal injury verdict is only $12,813. Why don't our personal injury lawyers pack up and leave Maryland for New Hampshire? Besides the cold weather, Maryland's jury verdicts are distorted by the defense lawyers from State Farm and Allstate, the two largest auto insurance providers in Maryland, who routinely "bump up" District Court claims to Circuit Court. In other words, if a personal injury lawyer in Maryland files on behalf of a client in District Court for more than $10,000, the insurance company's lawyers may remove the case to Circuit Court, requiring a jury trial. This practice leads to small claims type cases being tried by Maryland juries, leading to smaller median awards. Among cases in Maryland that belong in Circuit Court, we believe the median verdicts are much higher than $12,813. Our firm has never received a jury award less than $36,000.

The Courier-Journal in Louisville, Kentucky reported last week the story of a medical malpractice suit brought by a Louisville couple against an obstetrician, claiming the wrongful death of their one day old baby girl. Plaintiffs’ Complaint alleges that Dr. Ronachi Banchongmanie delivered their baby girl using "vacuum extractions." Although the baby appeared pale and had rapid respirations, she was not sent to ICU but instead sent to the newborn nursery where further complications developed in the absence of emergency care.

Obviously, allegations made in a medical malpractice lawsuit are just one side’s version of the facts. But Dr. Banchongmanie is what medical malpractice lawyers refer to as a frequent flyer. This medical malpractice action was the second filed against him in the last two years, and one of more than a dozen medical malpractice lawsuits filed against this doctor in the last fifteen years.

In Maryland, medical malpractice lawyers also encounter frequent flyers doctors who have often been the subject of malpractice complaints. For example, our firm is handling a case against a doctor in Salisbury, Maryland that our firm has seen many times over again. Our lawyers have investigated three or four cases filed against this doctor in the last few years. It makes you wonder just how many clients have walked into a lawyer’s office and alleged that this doctor had committed medical malpractice. What is unfortunate is that we rejected the other cases against this doctor because our lawyers believed that while there were medical errors, there were issues as to the amount of damages or as to causation of the victim’s injuries. Now, we have a viable case against this doctor. What is the likely outcome? Our lawyers bring a malpractice action against him, the client gets a recovery - either by settlement or at trial - and the doctor continues to practice medicine, albeit paying higher medical malpractice insurance premiums. No one is suggesting that this doctor or these other frequent flyer doctors are bad people, but should these doctors be allowed to continue to harm patients when any sort of reasonable inquiry would establish that they should not be treating patients?

One study by the U.S. Department of Health & Human Services suggests that frequent flyer medical malpractice offenders are a bulk of the “problem” of rising insurance costs. Just 5% of the doctors who make malpractice payments are responsible for almost one-third of the medical malpractice payouts. Logic tells us that of the almost 100,000 deaths a year that the federal government tells us are caused by medical malpractice, a disproportionate amount of these deaths are caused by a very small subset of doctors.

The take-home message from all of this is that if we could do a better job of policing doctors and weeding out the bad doctors, it would lower medical malpractice premiums and there would be a lot fewer medical malpractice cases in Maryland.

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer's client to "firm up liability" or to "assess credibility." But providing a recorded statement is typically a "loose-tie." It rarely results in a finding on liability in favor of the accident attorney's client. Of course, this is not to say that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

Defense attorneys use recorded statements to parse sound bites out of context, often giving ample fodder for cross-examination against your personal injury client at trial.

A critical caveat is in personal injury accident cases involving an uninsured or underinsured case. Because these claims are breach of contract cases, the accident lawyer's client's insurance policy almost certainly contains language making a statement to the uninsured motorist carrier a condition precedent to the accident victim's recovery under the policy.

The personal injury attorney should not assume compliance is necessarily required. This is particularly so in cases where the claim was denied. The accident lawyer should check to see when the claim was denied. If the claim was denied before the claim representative requested the recorded statement, the lawyer may have grounds for refusing a statement, claiming breach of contract. If this is the case, the lawyer should set up this claim in writing with the claims adjuster

If your client must give a statement in an uninsured motorist case, the best way to avoid disaster is to treat it as if the lawyer were prepping the client for his or her deposition. The accident attorney should discuss the client's statement with the client before he or she gives it and should generally have the client give the statement at his or her office. The lawyer should participate in the call the client makes to give a recorded statement, and should object to improper questions, remembering the Maryland Rules or the attorneys' local rules of procedure do not apply, giving the lawyer far more latitude. Finally, let the claim representative know you insist on a copy of the statement.

On a personal note, the lack of posts this week has been due to my vacation (this post is from Club Med in Florida). I return on Wednesday when more frequent posts will continue.

The Maryland Court of Appeals ruled this year in Nasseri v. GEICO that the driver of a taxicab that did not have PIP coverage who was injured in an auto accident had PIP coverage under the taxi cab driver's own personal motor vehicle policy for his injuries.

In this case, Plaintiff's taxicab collided with another car in Montgomery County. At the time of the accident, Plaintiff maintained a separate policy of auto insurance with GEICO for his personal car. The GEICO policy provided for PIP coverage in the event of personal injury resulting from an auto accident. Plaintiff made a claim for PIP benefits to GEICO, who denied PIP coverage. The District Court found in favor of GEICO and the Montgomery County Circuit Court, hearing the case de novo, affirmed the judgment in favor of GEICO.

Plaintiff attorney, who should be commended for putting this much effort into such a small case, appealed, arguing that GEICO's policy exclusion was not permitted by Section 19-505 of the Insurance Article of the Maryland Code and thus was invalid and unenforceable. Plaintiff also argued that Plaintiff was injured in a motor vehicle accident not because he was in a taxi but because the other vehicle was not a taxi cab. The Maryland Court of Appeals, in an unanimous opinion written by Judge Eldridge, agreed and reversed the lower court's opinion, specifically rejecting GEICO's argument that Plaintiff was not entitled to coverage because the Maryland Insurance Article excludes a "taxicab" from the definition of "motor vehicle."

In Maryland, the owners of taxicabs are not required to maintain the minimum PIP coverage on cabs. Taxicabs are indirectly excluded under Section 19-505 because taxicabs are not considered "motor vehicles" under Maryland's statutory scheme for PIP, as defined in Section 19-501(B)(2). The same holds true in Maryland for buses.

While this case will not have a big impact on personal injury law in Maryland, auto accident lawyers in Maryland are pleased that the Maryland Court of Appeals remains committed to interpreting the insurance code liberally to provide injured victims in auto accidents with at least the minimum coverage requirements under Maryland law.

One of the benefits for attorneys handling personal injury cases on behalf of injury victims is that plaintiffs' lawyers are far better able to dictate the pace of the litigation than defense attorneys. Some accident lawyers squander this opportunity by failing to fully load the gun before firing it. When our attorneys file a lawsuit, we serve the defendant with the Complaint, Requests for Admission, Interrogatories, and Request for Documents, and Expert Designations.

Our lawyers have always served a full course of discovery with our Complaint. What we have been doing in 2006 is filing our expert designations along with our Complaint. It is one more hoop a lawyer has to jump through when filing a Complaint but it takes away another deadline you will need to meet down the road. I just did a quick Lexis search typing in different searches to pull up missed expert deadline cases. In just a few minutes, I found hundreds of cases.

The only caveat to this is that you still need to put the expert deadline on your calendar and check off the list to make sure that you do not need additional experts for trial. Sometimes, you think you do not need an economist or a vocational rehabilitation expert when you file suit but you find out that you do over the course of the case. You may also find additional treating doctors over the course of the case if you client is still suffering from his or her injuries that you may want to add down the road.

Happy Mother's Day to all!

In Maryland, each party is allowed 30 interrogatories under Maryland Rule 421 without leave of the court. I was looking at a case today that was referred to us by a lawyer who had already filed suit in the case. Our lawyers are normally loathe to take a case that is already in litigation but the referring lawyer has referred a lot of work to us over the years so we agreed to step in and take over the case. It is a complex case involving serious injuries but the defendant's attorney has posed serious questions as to causation of the Plaintiff's injuries (previously non symptomatic patient with a herniated disk with an MRI that shows degeneration in the discs). I would love to ask additional interrogatories but the referring attorney, who is a great lawyer, filed 30 interrogatories with the Plaintiff's Complaint.

The lawyer was probably under the mistaken impression that you cannot file multiple sets of interrogatories. This was the rule until 1994, when Maryland Rule 2-421 was amended to allow parties to serve multiple sets of interrogatories. Of course, the total number of interrogatories still may not exceed thirty.

Given this rule, our attorneys typically serve a first set of initial interrogatories and file ''clean-up'' interrogatories after putting together the initial facts. When using multiple sets of interrogatories, another tactic our personal injury lawyers often use is alternative interrogatories, drafted in light of the defendant's attorneys answers to requests for admission. If the defendant's lawyer denies a request for admission that goes to a critical component of Plaintiff's personal injury case, a alternative interrogatory asks for all facts, witnesses and tangible evidence the defendant intends to rely upon at trial to support the defense lawyer's denial. This tactic is also explained by Even Schaeffer in his trial blog. For a sample of the use of multiple sets of interrogatories, click here.

Another thought for attorneys answering interrogatories in Maryland and in many other jurisdictions. Often, the scheduling order is unclear about whether the discovery deadline is the deadline to file interrogatories or to have "all discovery completed." If the answer the latter, your actual deadline to file discovery is 33 days (30 days plus three mailing days) before the discovery deadline. Accordingly, you calendar system should include a deadline to serve additional discovery (or to file a motion to compel) a least 33 days before the discovery deadline (or whatever amount of time your state's local rule calls for).

Related Posts:

On our personal injury lawyer help page, I added today a recent videotape trial direct examination and cross examination of defendant's "independent" medical doctor. The focus of the exam is financial bias. Studies of jurors increasingly are demonstrating that juries do not like doctors who are paid ridiculous amounts of money to testify or doctors whose entire income comes from insurance companies. My partner, Laura Zois, did an excellent job cross examining this expert in a case set for trial against Allstate next month in Baltimore City. This expert clearly earns a living not providing care and treatment for patients but by providing expert opinions and testimony for insurance companies. There is nothing inherently wrong about this but jurors in Maryland are skeptical of opinions from these doctors, particularly when they contradict the treating doctor's opinions.

One of the most tedious chores accident attorneys in Maryland must perform is the collection of medical records in personal injury cases. How much can health care providers charge Maryland lawyers for copying the medical records? The short answer: a lot. The Maryland Health-General Annotated Code §4-304 sets for the maximum charges:

• $19.70 as a "preparation fee"
• $0.65 for each page
• The actual cost of the postage

The statute actually reads $15.00 as a preparation fee and $.50 a page but fees increase yearly with the consumer price index (thankfully not the cost of health care). Not surprisingly and I do not blame them, many providers will not release the medical records to an accident lawyer until the fee has been paid. But the health care provider cannot refuse to produce the medical records because of an outstanding bill for the care and treatment rendered.

Under Maryland Health-General Annotated Code §4-403, health care providers must maintain medical records for five years. Medical records for minors may not be destroyed until the patient reaches the age of majority plus three years or for five years after the record or report is made (whichever is later). Interestingly, on their web site, Medical Mutual, the leading medical malpractice insurance company in Maryland, suggest that doctors keep their medical records indefinitely. Many Maryland attorneys I have spoken to also maintain their legal files indefinitely.

Circuit Court Judge Richard Eli Jackson became Administrative Judge of the Circuit Court of Cecil County last week. Judge Jackson was named Administrative Judge by Maryland Court of Appeals Chief Judge Robert M. Bell. This position became available when Judge Dexter M. Thompson, Jr. resigned as Administrative Judge, although he still sits on the bench in Cecil County.

Judge Jackson has been an Associate Judge since 2002. Before his appointment to the bench in Cecil County, Judge Jackson was a lawyer in private practice from 1978 until he was elevated to the bench in 2002.

Our plaintiffs' personal injury lawyers frequently receive calls from defendants who have been involved in an auto accidents who do not understand why they are being sued by an insurance company as a result of an auto accident they had with an individual in which no one was injured. Although our lawyers do not handle these cases, we explain to these people the concept of subrogation law in Maryland. Most people involved in an auto accident in Maryland do not realize that if they do not have auto insurance and the accident is their fault, the other party's insurance company can sue them for the money it paid out in property damage. Many of these callers are surprised when, years later, they receive suit papers for an auto or truck accident in which no one sustained a personal injury, yet they are being sued for thousands of dollars. The insurance company is exercising its right to subrogation, which literally means the insurance company is substituting itself for the actual party involved in the auto accident and collecting the money for the damage done to that individual's property (for which they have already paid pursuant to their insurance contract with that person).

We usually recommend a competent Maryland attorney for these people. The problem, of course, is that the amount of damages are often such that it does not make economic sense to involve a lawyer. If the callers do not want to get a lawyer, we usually advise them to contact the insurance company's lawyer and try to negotiate a settlement. The insurance company's lawyer is usually authorized to accept pennies on the dollar to settle these cases in an effort to save the insurance company the time and effort of trying to collect a judgment it obtains.

A lawyer in Virginia emailed to ask me if failure to wear a child seat is contributory negligence in Maryland? Setting aside for a moment the abject irresponsibility of this mother who failed to ensure the safety of her child, the answer is no. The Maryland Transportation statute that requires the use of child safety seats specifically states that a violation of the statute, while a crime, is "not contributory negligence and may not be admitted as evidence in the trial of any civil action." Maryland Transportation Code § 22-412.2(i).

Parenthetically, the same logic holds true with the failure to wear a seat belt in Maryland. While it may be a crime, a "party, witness, or counsel may not make reference to a seat belt during a trial of a civil action that involves property damage, personal injury, or death if the damage, injury, or death is not related to the design, manufacture, installation, supplying, or repair of a seat belt." Maryland Transportation Code Annotated. § 22-412.3. In summary, the failure of a personal injury plaintiff to use a seat belt or a child seat is not admissible at trial, although it is a misdemeanor crime (I feel compelled to continue to repeat this).

With respect to the admissiblity of the use of seat belts in Maryland, this sword cuts both ways in that personal injury lawyers often want to present evidence that the lawyer's client was wearing a seat belt to underscore that the injury victim did everything that he or she could to prevent serious injury. But this testimony is also not permissionble under § 22-412.3.

Nationally, there is a split of authority as to whether, under principles of mitigation of damages or as contributory or comparative negligence, a injury victim's failure to wear a seatbelt can justify a reduction in the amount of damages that he or she receives. But even in jurisdictions that allow such evidence, a reduction is usually justified only if the Defendant's attorney can provide medical evidence to a reasonable degree of medical certainty that Plaintiff's injuries would have been eliminated or reduced had Plaintiff been wearing a seatbelt when the accident occurred. See DiPirro v. U.S., 181 F.R.D. 221 (W.D.N.Y. 1998).

Continue reading "Is Failure to Use a Child Seat Contributory Negligence?" »

A few days ago, I wrote about Prince George's County, Maryland Circuit Court Judge Thomas P. Smith's article entitled Alice in Discovery Land (A Practical Guide to Recurrent Discovery Problems) that appeared years ago in Maryland Litigator, quoting Judge Smith's comment about the oxymoronic phrase "Independent Medical Exam."

Personal injury lawyers in accident cases on both sides of the aisle have their own unique problems. One of the big problems the insurance company's accident lawyers have is obtaining credible medical experts to testify at trial. Attorneys are in a catch-22: they need doctors who regularly testify because of the volume of cases that they have but doctors who are willing to have spend much of their practice testifying for insurance companies have little credibility. As a result, most of their experts are deeply wedded to the insurance companies, a fact that is rarely lost on jurors.

When the defense lawyer's asks for an IME, we send out a list of conditions before agreeing to the exam. We also subpoena the doctor's records. In most cases, the doctor refused to respond to the subpoena because they do not want to reveal the extent to which they are wedding to litigation related work generally and, specifically, to the insurance companies. Consequently, the defendant's lawyer's is forced to withdraw the expert.

A few random thoughts about cross-examining the IME doctor:

• How much money do you make? Studies are showing that more and more, high priced hired gun experts (even as opposed to high priced treating doctors) are being increasingly discounted by juries.
  
• The IME doctor usually performs only a cursory evaluation of the injury victim. This should be contrasted to the numerous examinations and conversations with the injury victim by the treating doctors. Accident lawyers should give their clients forms to fill out immediately after the evaluation that asks for, among other things, how much time the doctor spent with the injury victim and what questions he asked. If the doctor did a quick review of the patient, the patient's personal injury attorney should bring this out the direct examination of the client.
  
• Do you agree that there can be honest differences of opinions among doctors? Medicine is not all black and white, right? When the IME doctor agrees -- as he/she must do -- it lends credence to the treating doctor's opinion.
  
• Parse the expert report. Invariably, to maintain some credibility, the IME doctor will throw you a bone or two. Cross the expert with it.
  
• If the treating doctor consulted other doctors in evaluating the patient, the plaintiff's accident lawyer should point out the IME doctor did not. This underscores the difference between an examination for medical purposed and an exam for an insurance company in a lawsuit.
  
• Often, defense experts are named before they evaluate the patient or even see a single medical record, largely because the insurance company's lawyers know they will see the case as they are paid to - the insurance company's way. The IME doctor loses a lot of credibility when the plaintiff's accident lawyer points this out to a jury.
  
• If the IME physician practices in the same community as the treating doctor, ask the IME doctor if he considers the treating doctor to be a well-respected physician in the community. There are no bad answers to this question.

For more ideas on cross examination of an IME doctor, select here for a sample cross-examination.

Continue reading "Independent Medical Exams: Personal Injury Attorney Cross Examination of Defendant's Medical Expert" »