Maryland Injury Lawyer Blog

A Florida jury awarded a Lee County (Naples) woman $8.25 million in a medical malpractice case against her plastic surgeon after she lost both her breasts in a botched breast augmentation surgery.

Naples surgeon Dr. Luciano Boemi attempted to give the 28 year-old Plaintiff a breast lift and augmentation in 2003. During the surgery, the Plaintiff's blood supply was cut, resulting in her breasts turning black and forming a hard, dry tissue. Incredibly and tragically, thirteen surgeries were required to remedy the Plaintiff's open wounds and to try to reshape some of the tissue that remained on her breasts.

For whatever reason, Florida juries are the most generous in the nation. The median personal injury verdict in Florida is $100,000, according to Jury Verdict Research. No wonder personal injury lawyers and medical malpractice attorneys flock to Florida. In contrast, the median verdict in Maryland is $12,813. While I have indicated in the past that I think this statistic is somewhat what misleading because of the number of small claims type personal injury cases in Maryland that Plaintiffs' lawyers end up trying in Maryland Circuit Court, it does not make up the nearly tenfold difference between Maryland and Florida. If there are any Florida personal injury lawyers reading this, I would be interested in your thoughts on why juries are far more generous in Florida accident and medical malpractice cases.

Chrysler announced that it is recalling over 800,000 Jeep Liberty sport utility vehicles because of the potential loss of steering control after Chrysler received 111 complaints about this problem. The National Highway Safety Administration has so far received nearly 500 complaints regarding this problem with the Jeep Liberty. Chrysler admits three reports of injuries from auto accidents as a result of the defect. In the complaints that have been made, the ball joint failed, dropping the vehicle's front end onto one or both of the front tires.

Many personal injury lawyers in Maryland and around the country have been talking about this recall because it impacts so many vehicles. These lawyers are gearing up for claims that the steering ball joint in the Jeep Liberty has caused auto accidents that could have been prevented. I suspect, however, that the number of car accidents from this recall will be very low. But in rare cases where a serious car accident is caused by this defect, I am sure that Chrysler will seek to resolve those accident cases with the plaintiffs' attorneys very quickly.

Medical malpractice plaintiffs receive a median award of $934,487 for medical malpractice claims involving surgical negligence and improper medication, according to a recent Jury Verdict Research study that looked at medical malpractice cases nationally in the last seven years. Plaintiffs have a 36% chance of prevailing in these cases. The following is the listing of different types of cases and the corresponding likelihood of recovery.

Failed Sterilization 35%
Catheterization 39%
Foreign Object Left in Body 66%
Lack of Informed Consent 25%
Postsurgical Infection 43%

In Maryland, there has not been a study of medical malpractice claims that breaks out the likelihood for different types of malpractice claims as Jury Verdict Research has done nationally. In Maryland medical malpractice cases overall, Plaintiff's prevail 8% of the time with an average recovery of $806,772. But I think the reason for the low figure is not that Maryland juries are tough on medical malpractice victims or that they are willing to give doctors a pass on their negligence (although this certainly happens in some medical malpractice cases). Instead, I think Medical Mutual, the largest medical malpractice carrier in Maryland, has a history of settling cases if the Maryland medical malpractice lawyer is able to make a compelling case at the close of discovery.

The Maryland Trial Lawyers Association is conducting a case evaluation clinic on Wednesday, September 20, 2006 at the Maryland Trial Lawyers Association in Baltimore. Maryland lawyers with personal injury cases may bring their case to a panel of seasoned Maryland personal injury lawyers for a case evaluation. If you are a Maryland lawyer with a personal injury case and you would like assistance in evaluating your case or in preparing your settlement/trial strategy in the case, this is a great opportunity. My partner, Laura Zois, is the chairperson of the Maryland Trial Lawyers Association Membership Committee that puts on this clinic. If you have an interest in having your case evaluated, call her at 410-553-6000.

In Maryland, to bring a medical malpractice complaint against a doctor, the Plaintiff's lawyer must obtain a certificate of merit by a medical doctor that the negligent doctor breached the standard of care and caused injury to the injured plaintiff. The necessary qualifications of the medical doctor depend on the subject matter of the particular claim. Under Maryland law, the preliminary requirement for medical doctor who executes a certificate of merit is that: 1) they have clinical experience, 2) provided consultation relating to clinical practice, 3) taught medicine in the defendant's specialty or a related field of health care or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action. With limited exceptions, the doctor must also be board-certified in the relevant area of medicine.

The certificate of merit in Maryland medical malpractice cases must contain three elements:

1. Where the doctor is licensed to practice;

2. An opinion within reasonable degree of medical probability that the treating doctor departed from the applicable standard of care in treating the plaintiff and that there was damage from the breach of the appropriate standard of care;

3. That the doctor does not devote annually more than twenty percent (20%) of his professional activities to activities that directly involve testimony in personal injury claims.

The purpose of this requirement from the Maryland legislature is to prevent frivolous medical claims from being filed. Other states have similar rules as Maryland's medical malpractice requirements and I believe these rules have largely been effective in keeping out malpractice claims without merit. Recent studies and a new book agree with the premise that medical malpractice lawyers in Maryland have known for a long time: over time, it is economically impossible for attorneys to bring frivolous medical malpractice cases.

If you live in the Baltimore Washington area and believe you have been a victim of medical negligence in Maryland, click here and our lawyers will be happy to discuss your case with you over the phone (800-553-8082), in person, or by free Internet consultation.

More Maryland Malpractice Resources

For Medical Malpractice Victims

Medical Malpractice in Maryland (an overview)

Malpractice FAQ's (answer to many Maryland malpractice victim questions)

Settlement and Trial Values of Maryland Malpractice Cases (general information what your medical malpractice case is worth in Maryland and around the country)

Medical Malpractice Recovery Rates for Surgical Negligence and Improper Medication (how do plaintiffs fare in surgical negligence cases)

Informed Consent Law in Maryland (what is lack of informed consent and how is it established?)

Medical Malpractice Claims in Maryland for Missed Diagnosis of Heart Attacks (why health care providers often miss the signs and symptoms of a heart attack)

Maryland Medical Malpractice Statute of Limitations (details about the nuances of statute of limitations in Maryland malpractice cases)

Birth Injuries (birth injury cases such as cerebral palsy, brachial plexus palsy, erbs palsy, shoulder dystocia)

For Maryland Malpractice Lawyers

Example Malpractice Lawyer Deposition of Medical Malpractice Doctor (example of the deposition of the defendant doctor)

Sample Deposition of a Plaintiff's Expert (depostion of a plaintiff's medical expert)

Sample Medical Malpractice Complaint (sample complaint in medical malpractice case)

Maryland Medical Malpractice Statute of Limitations (details regarding Maryland statute of limitations in medical malpractice cases)

Example Certificate of Merit (sample certificate of merit in a Baltimore malpractice case)

Another Example Certificate of Merit (sample certificate of merit on OB/GYN case)

Example Waiver of Health Claims Arbitration (sample pleading to waive arbitration and file in Circuit Cour in a Maryland malpractice case)

Maryland Medical Malpractice Lawyer Blog (blog on medical malpractice issues)

The Baltimore Sun ran a story today about Baltimore County, Maryland prosecutor James Gentry was preparing to try an awful murder case of a nine year-old girl in 1998. If you are a prosecutor, this is one you need to win. Looking for an extra edge, he turned to his sister who worked for a company who made PowerPoint presentations to private companies, a novel innovation in 1998 for anyone much less a lawyer.

Gentry's used this cutting-edge technology in his closing argument in the infamous 1998 murder trial in Baltimore County of Rita Fisher. His success launched his interest in using technology to courtroom presentations. After years of traveling across the country to teach other lawyers how to use the technology, Gentry has joined the highly respected medical malpractice law firm in Baltimore of Salsbury Clements Bekman Marder & Adkins to assist their lawyers in creating computerized presentations to assist jurors in understanding the complexities that often come with sophisticated medical malpractice cases.

Using technology in the courtroom is the future for Maryland personal injury lawyers. If you are looking for advice on what to do and not to do as a firm investing in courtroom technology check out Dave Swanner’s South Carolina Trial Blog.

I added to our Personal Injury Lawyer Help Center's Trial Materials section a direct and cross examination for a trial I had in Prince George's County, Maryland two weeks ago. The cross underscores the difficulty defense lawyers have in cross examining treating doctors on bias. The message as always: use treating doctors in personal injury cases whenever possible.

This maxim is most difficult to apply but holds most true in medical malpractice cases. The difficulty, of course, is getting the subsequent treating doctor to offer medical malpractice opinions that he/she does not want to give for reasons that have nothing to do with the question of whether a medical mistake was made. Maryland has a small medical community and there is great reluctance for Maryland doctors to testify against each other.

I also added, by popular demand, another deposition of a defendant driver in a Maryland auto accident case, this one by attorney Laura G. Zois. I intend to add more of these things as the we continue to expand the Maryland Personal Injury Attorney Help Center. It is just very time consuming for us to redact all of the parties' identifying information, scan in the documents, and then put it up on the web site. Slowly but surely we will continue to build it up.

The Journal of Clinical Oncology reported that radiation and the pharmaceutical drug, Herceptin, are linked to some heart problems. Because radiation treatment in breast cancer patients cannot be localized to just the targeted area, the heart and coronary arteries are typically also exposed, increasing the risk of future heart disease. Herceptin apparently can lead its users to lose some pumping ability in the heart and shortness of breath, both very troubling outcomes for cancer patients and cancer survivors.

As I mentioned in my blog post on August 2nd, the cost/benefit of these cancer fighting drugs are very different from, for example, Vioxx. Clearly the fact that there are great risks associated with the use of Herceptin is well understood. The package insert warns, among other adverse events, pulmonary risks and cardiomyopathy (serious inflammation of the heart muscles). But the efficacy of Herceptin might be such that it is worth the risk given the benefits of the drug, even in conjunction with the heart risks that come with radiation. I point this out simply because many plaintiffs' pharmaceutical lawyers in Maryland and around the country have a knee jerk reaction that new learned of risks associated with a drug means there must be liability on the part of the drug company. But really, news of unexpected adverse outcomes is just the beginning for the personal injury lawyer's investigation as to whether there is liability on the part of the drug company for clients who suffered these adverse effects.

Prince George’s County Circuit Court Judge William D. Missouri has been elected chair of the National Conference of State Trial Judges, which is the most prestigious organization of general jurisdiction state trial judges in the country. Judge Missouri, a former Prince George's County prosecutor, has been on the bench in P.G. County since since 1988.

Last month, the Maryland Court of Special Appeals issued its opinion in Maryland Casualty Co. v. Hanson. The issue in the case involved whether multiple exposures to lead based paint over multiple years constituted multiple occurrences such that the insurance policies would stack or whether the policy’s “limitation of liability” provision defining continuous and repeated exposure as one occurrence, thus limiting the amount of available insurance coverage. This is a classic long term toxic exposure case involving numerous insurance polices. The question is which insurance carrier(s) is/are on the risk and whether the policies stack.

The issue in this case is whether the continuous trigger theory applies. Continuous trigger is a relatively new idea in the law that deals with the problem of repeated injury over time. Under this theory, a loss occurs for the purposes of insurance coverage during any time of exposure. It is sometimes called the triple trigger because coverage is invoked in one of three ways: initial exposure, continuing exposure, or by manifestation of loss.

In the underlying case in Maryland Casualty v. Hanson, the plaintiffs were children exposed to lead paint at a property owned by defendant on North Central Avenue in Baltimore, Maryland. The exposure to lead based paint was over six years, spanning several insurance policies.

Baltimore City Circuit Court Judge Albert J. Matricianni, Jr. ruled that under Maryland law, if there is proof of repeated exposure to a toxic substance that continue over time, the continuous injury or injury–in–fact trigger is applicable and thus triggers insurance coverage during all applicable policy periods. Thus, Maryland Casualty was found to be one of the insurance companies on the risk and their policy would stack with the other insurance companies on the risk.

Maryland Casualty's lawyer argued on appeal to the Maryland Court of Special Appeals that Maryland Casualty's policy language, which is the typical language in these policies, limited coverage to a single occurrence. Specifically, Maryland Casualty's attorney contended that the limit-of-liability provision in Maryland Casualty's insurance policy limited its coverage to a single occurrence: "Limits of Liability: Regardless of the number of (1) insureds under this policy, (2) persons or organizations who sustain bodily injury or property damage, or (3) claims made or suits brought on account of bodily injury or property damage, the company's liability is limited as follows . . . For the purpose of determining the limit of the company's liability, all bodily injury and property damage arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence."

The Maryland Court of Special Appeals noted that the Maryland Casualty policy language is standard general commercial liability policy language. Under this and similar language, the court pointed to an evolution in the law with respect to what coverage applies in continuous or multiple exposure cases. The court found that the law in Maryland is now that proof of repeated exposure to lead, which results in lead–based poisoning injuries that continue for several years, with continuous exposure, the continuous injury or injury–in–fact trigger is applicable. Thus, insurance coverage is triggered during all applicable policy periods.

Maryland Governor Robert L. Ehrlich Jr. appointed to the bench two Prince George's County District Court judges:

Daneeka Cotton: Judge Cotton was a child advocate at the Legal Aid Bureau of Maryland and an assistant Prince George’s County state’s attorney prosecuting child abuse cases. Her most recent position is a family division master in P.G. County; and

Patrick Duley: Judge Duley was a Prince George's County attorney who focused primarily on family law. His practice was located in Upper Marlboro.

See also New Judges in Baltimore City and Prince George's County, January 14, 2007

Retired Prince George's County Marvin H. Smith turned 90 years old today. Happy birthday Judge Smith!

With little fanfare, the Anne Arundel County Circuit Court now allows Maryland attorneys to appear by phone for nonevidentiary motions, status conferences, and other pretrial proceeds, saving the long drive for many Maryland personal injury attorneys to Annapolis.

Counsel is required to make a request to use CourtCall at least five days before the attorney's scheduled appearance. Naturally, the court can reject the request if it so chooses. For more details, call CourtCall's program administrator at 888-882-6878

In spite of the $50 cost (for a phone call!) to use CourtCost, this will be a blessing for personal injuries lawyers in Maryland who are required to drive great distances for a 10 minute pro forma hearing.

The New York Times reported yesterday that according to the Insurance Institute for Highway Safety, auto manufacturers have made significant progress in improving the safety of drivers and their passengers in frontal and side-impact collisions but still lag behind in making cars safe in rear-end accidents.

In rear-end tests that were conducted, two of the best selling cars, the Toyota Camry and the Dodge Caliber, were rated marginal, the second-lowest of four possible scores. All six models tested earned at least an acceptable rating in frontal tests, but only the Kia Optima, a mid-size sedan, was given a passing grade in rear-end crashes.

Rear-end impacts are the most common type of accident, making up millions of insurance claims every year (most for property damage). Rear-end accidents are the stepchild of safety efforts from car makers. To some extent, this is understandable as frontal and side crashes are far more likely to result in serious injuries or fatalities. This is also reflected in settlement and verdicts. The average rear-end accident case resolves for only $8,715 over the last six years, according to Jury Verdict Research, compared to $30,000 for head-on collisions. Still, you would like to see the auto manufacturers make improvements in protecting occupants in rear-end collisions as well because they do, while less frequently, cause serious and fatal injuries.

A fear I have is that automakers are going to start making smaller cars as demand for fuel efficient cars increases. While I am all in favor of reducing our dependence on foreign oil, the death toll on our nation's highways is going to increase dramatically when we are all driving Yugos.

In the August issue of the Journal of Nature Medicine, researchers report that Gleevec (known generically as Imatinib), a drug that treats leukemia patients, may cause serious heart damage. There is evidence of heart failure in 10 patients who took Gleevec.

I read this article both as a two-time cancer survivor and as a personal injury lawyer. To evaluate a drug, you have to evaluate both the risks and the benefits. Studies show 80 percent to 90 percent of chronic myelogenous leukemia (C.M.L) patients on Gleevec were cancer-free for at least five years. Patients die in usually half of the 4,600 new C.M.L. cases diagnosed each year. Accordingly, Novartis, the maker of Gleevec, has a good argument that the drug is not just efficacious but a miracle drug, particularly when you add in the fact that Gleevec can be given by mouth instead of by injection. In fact, even the researchers who reported these adverse events said that patients should not stop taking the drug, but must be watched closely for heart damage.

Does this mean Novartis did everything that it should have done? I don't know. Certainly, the preference would be that Novartis would have its finger on the pulse of its drug's side effects as opposed to Nature Medicine breaking this story. You would hope that Novartis has not been more forthcoming because this is a $1.2 billion drug and it fears losing market share. I have no evidence one way or the other. But just because a drug has potentially fatal consequence does not mean that drug should not be on the market. Patients and doctors have to weight the costs and the benefit.