Maryland Injury Lawyer Blog

Frequently, insurance adjusters, plaintiffs' personal injury lawyers and defense lawyers confuse two important concepts when a defendant driver is using someone else's vehicle: permissive use vs. negligent entrustment. I had an adjuster confuse the two last month during settlement negotiations so I thought I would write today about the differences between these two concepts under Maryland law.

Permissive use refers to whether or not the driver of a vehicle had the permission (either express or implied) of the vehicle's owner at the time of the automobile accident. Whether or not the driver had the owner's permission is an issue that affects whether there will be insurance coverage provided to the driver by the owner's insurance company. This issue usually does not affect who should be a defendant in a personal injury lawsuit in Maryland (but may affect who has coverage for the accident).

Negligent entrustment is a cause of action that arises when one party (the entrustor/owner) is held liable for negligence because they negligently provided another party (the entrustee/driver) with a dangerous instrumentality (car), and the entrusted party caused injury to a third party with that instrumentality. This cause of action is typically very hard to prove because it must be shown that a reasonable person in the owner's position knew or should have known of the dangerous propensity of the driver such that no reasonable person would have loaned them a vehicle. Usually, the driver must have had a conviction for reckless driving or some other serious offense(s). Many plaintiffs' personal injury lawyers make the mistake of pleading this cause of action every time the defendant driver is a minor and is using their parents' vehicle. Just being a minor does not make the driver an automatic dangerous propensity risk.

These two concepts are very different and, nonetheless, often confused. Permissive use is an issue which is often up for debate between the driver and the owner, whereas negligent entrustment usually just involves considering what the state of mind and knowledge of the owner was at the time that he or she loaned the vehicle to the driver. Our lawyers usually find it prudent to consider each of these issues separately, since very different facts need to be considered to show each.

Happy Halloween to all.

I heard on the radio yesterday that there are four times more fatal auto accidents from drunk driving on Halloween as there are on New Year's Eve. While this is not supported by statistics, it is true that drunk driving crashes cause more fatalities during Halloween than the New Year’s holiday. Four out of ten accidents today with be alcohol related. Moral of the story: be safe and keep your kids safe tonight.

Last week the Maryland Daily Record reported on a $2.3 million jury verdict in a Maryland medical malpractice case in Baltimore County. The trial before Baltimore County Circuit Court Judge Dana M. Levitz took six days and the jury deliberated for seven hours before returning a verdict, according to Plaintiff's medical malpractice lawyer Daniel Clements of Salsbury Clements Bekman Marder & Adkins (Baltimore City) who tried the case along with J. Mitchell Lambros of Lambros & Lambros (Baltimore County). Both of these lawyers are extremely well respected medical malpractice lawyers in the Maryland legal community. (Incredibly, I am told that in the same week Mr. Clements' partner, Julia Lodowski, was awarded a $2,295,000 verdict in a medical malpractice case tried before Judge Kaye Allison in Baltimore City.)

In this case, Plaintiff went to his doctor of 30 years on Sept. 3, 2003, complaining of headaches, vision problems and loss of balance. His doctor wrote down the letters "TIA" in the Plaintiff's medical records, which Plaintiff's attorney contended meant that he had properly diagnosed Jablecki with transient ischemic attack, which can portend a stroke. Plaintiff's attorney argued that the doctor should have known that Plaintiff was a prime candidate for stroke and treated him with greater urgency. Instead, the doctor ordered a CT scan on September 5. The next day, the Plaintiff had a massive vertibular stroke. Today, Plaintiff has lost much of his ability to speak and to walk. (Last week, I wrote a blog post about these types of cases.)

A. Gwynn Bowie, Jr., a medical malpractice lawyer who represented the doctor accused of medical malpractice was quoted by the Daily Record as saying his client was "blameless. " "I guess what I would say with respect to this verdict is, if not a result of pure sympathy, there is no rational explanation of the verdict," the attorney said. "It is, in my opinion, completely unsupported by the facts and the record and it is a slap in the face of a good doctor who worked hard for 25 years to help keep a severely medically compromised patient alive. "

Well, Mr. Bowie, the jury did not quite see it that way. Interestingly, although this was not reflected in the article, I'm told the jury awarded only $600,000 in pain and suffering and the rest in past and future medical bills and lost wages. It makes you wonder whether the jury gave an award approximating the Maryland cap on pain and suffering because it knew of the cap. With all of the talk of tort reform in the news of late, more and more juries know what they are not told by the judge or the lawyers during the trial such as the availability of insurance and the existence of a cap on non-economic damages in Maryland.

Dallas Cowboys assistant coach Todd Haley is finding himself in the news lately. A few weeks ago, Haley got into a well-publicized argument with Terrell Owens. Last week, an attorney in Houston filed a personal injury lawsuit on behalf of Haley, his wife and their family's nanny against McDonald's claiming his wife and the nanny found a dead rat in a salad they took home and began to eat. Of course, they seek $1.7 million in damages.

According to the complaint, Haley's wife and their nanny ate prt of the salad purchased June 5 at a McDonald's before the rat was discovered. The women became violently ill and endured "long-lasting" physical injuries.

If these injuries prove to be serious, the rest of the post is moot. But my guess is that the bulk of their claim is the horror of eating a dead rat. It sounds awful to be sure. But is it really a big deal? I became a personal injury lawyer to help people that are truly hurt and suffer, not people that had a moment of yuck, albeit extreme yuck.

Yesterday's USA Today ran a story about the often preventable tragedy of undiagnosed heart attacks. It told the story of James Pettry, who woke early one morning short of breath and sweating profusely. His wife dialed 911. The paramedics gave Mr. Pettry oxygen and aspirin and then used an electrocardiogram machine to examine the heart's electrical function. They believed he was having a heart attack and took him 3 miles to the hospital. The emergency room doctor disagreed. The doctor ran some tests and sent Mr. Pettry home nearly five hours later with a diagnosis of anxiety, saying Pettry just had anxiety.

We all know where this story is going. Mr. Pettry died the next day, joining the list of thousands every year who die every year when their heart attacks are undetected by doctors. In fact, researchers from New England Medical Center in Boston reported in the New England Journal of Medicine in April 2000 that one in 50 heart attack victims are mistakenly sent home by emergency room doctors. Other studies have documented higher rates of missed heart attack diagnosis.

The defendant's medical malpractice lawyer says that his patient died from chronic heart disease that had no connection to the symptoms that landed him in the ER.

In this case, who knows? We don't have access to all of the evidence so it is possible that this emergency room doctor did not miss a myocardial infarction. But regardless of the regrettable facts in this particular case, there is no question that more can be done to prevent the thousands of misdiagnosed cases in the United States each year, according to Joseph Ornato, Professor and Chairman of the Department of Emergency Medicine at Virginia Commonwealth University Medical Center in Richmond, who has researched the emergency care of heart attacks. "Even in the best of hands, you can easily miss cases. This is a very perilous area."

Juries agree. A missed heart attack diagnosis brings high medical malpractice payouts. The vast majority of malpractice settlements for heart attacks come from errors in diagnosis, according to data from Jury Verdict Research, which tracks and analyzes nationwide trends in personal-injury litigation. Over the past decade, the median jury verdict for heart attack malpractice lawsuits was $941,000. The lowest was an Oklahoma judgment for $81,000 in 1996, and the highest, $9 million, came in an Illinois case in 1997.

I have been meaning to add to the Maryland Personal Injury Lawyer Help Center's sample interrogatories section truck accident discovery. I finally got around to it today, adding both truck driver and trucking company interrogatories.

Last week, I received the following email from a doctor:

"I was looking through your website and I noticed that you talk about Colossus and its value for cases in your state. I hold the largest personal injury seminar in the southeast and our next Colossus Seminar is October 28th. You should not only bring your firm, you should also invite all the physicians that you work with. If your doctors do not know the value drivers to add in their medical documentation, then you cannot add them into your demands."

Okay, now if a personal injury lawyer asks a medical doctor who often sees the lawyer's clients to go to this seminar, what would the doctor say? How exactly does the lawyer frame that question? Gee, listen, can you take time away from caring for your patients to travel outside of Maryland with me to a seminar so you can best learn how to rig your medical records?

There are a lot of medical doctors our personal injury lawyers have come to know because the doctors regularly treat our lawyers' clients. Frankly, if a client does not have a medical doctor and/or has health insurance issues, we will often refer them to doctors who are willing to take their case and hold off pursuing payment until the case is resolved. But I do not know a single one of these doctors who would not be insulted to be invited to such a seminar.

I think it is important to understand how the insurance companies evaluate cases which is why I have written extensively on this topic. I also do not think it is a bad idea that health care providers have some general understanding of the process because patients can get inferior offers based on the specific wording in medical records as opposed to how that patient presented. But, in the end, personal injury lawyers and their clients have a remedy if the insurance company does not offer a fair settlement: a trial. My guess is that is you go to one of these seminars, you will find a lot of lawyers there who are settlement lawyers and not trial lawyers. Ironically, the insurance companies and their computers know who the settlement lawyers are and this devalues the attorney's personal injury cases more than the nuisances in the medical records.

Final thought: how much would you like to be the defense lawyer who is about to cross examine a medical doctor who just got back from a "How to Rig Your Medical Records to Get Better Offers from the Insurance Company" seminar with the personal injury lawyer who just did the doctor's direct examination?

Where has the Maryland Personal Injury Lawyer Blog gone? Well, it is a long story. The short version is that my wife delivered our ridiculously beautiful twins, Morgan and Tyler, on Tuesday, October 10, 2006. Unfortunately, the twins were due on December 12th so they are 63 days premature. Still, they are doing incredibly well here at the Neonatal Intensive Care Center (NICU) at Anne Arundel Medical Center. The nurses and doctors here are absolutely fantastic, just amazing people that are taking great care of Tyler and Morgan. There are no guarantees for Ty and Morgan (or any of us) but the expectation here is that we will take them home, hopefully in the next month or so, and that they both will grow up as happy and healthy kids. Please keep Ty and Morgan in your prayers. Please.

I'm writing from my laptop in the NICU as we speak, looking at the two of them lying next to each other with Ty's arm around Morgan which is pretty much the most beautiful thing I have ever seen in my life. I hope to post to the Maryland Injury Lawyer Blog often this week, pretty much as therapy for myself. Hopefully, you can read some posts that you find of interest to you in the process.

More and more, personal injury lawyers in Maryland auto accident and truck accident cases are doing battle over the ‘independent’ medical examination. Attorneys argue over everything from who should conduct the examination, how far the plaintiff should have drive for the examination, to more substantive issues such as the examining doctor’s financial records. However, one thing that is occasionally overlooked by plaintiff’s personal injury lawyers is the fact that their client may have already had such a medical examination before they even became involved in the case if the case involves an uninsured motorist or PIP coverage was utilized.

Most insurance policies have a provision whereby the insurance company can ask for the policyholder to attend a medical examination with a physician of its choosing before any payments are made to the insured. This is can be used as a condition precedent to any insured receiving PIP benefits or uninsured motorist benefits.

The Maryland personal injury lawyer must be careful in cases where PIP has already been paid or where uninsured motorist coverage applies. Often times, the insurance adjuster has a copy of the report complied by the insurance company’s doctor months or even years before it must be disclosed to the plaintiff’s lawyer (for example, before suit has been filed or before discovery answers are due).

These “condition precedent” type independent medical examinations give the insurance company additional discovery that they would not be entitled to once the case has gone to court, meaning more than one opportunity for a favorable report. Therefore, it is always a good idea for the plaintiff’s accident lawyer to subpoena not only the claim file for the case or suit they are involved in, but also the file of any previous adjuster handling a PIP or other file. Our lawyers at Miller & Zois have found that if you get these old files, sometimes the lawyer will get a copy of an independent examination that was favorable to your client, but was not divulged in discovery since it was “not part of the claim file” of your case. It is still discoverable material under Maryland law and could help make your case.

More often than ever before, our lawyers are having difficultly getting timely answers to discovery from defense lawyers. I do not think this is some nefarious plot. Rather, I think defense lawyers are used to answering discovery whenever they feel like it because Maryland personal injury lawyers are not holding their feet to the fire.

As a matter of practice, Maryland lawyers should send out a letter as soon as the discovery is late. Not to be difficult for the sake of being difficult but to make sure that the lawyer has complied with Maryland Rule 2-431, which does not allow discovery motions to be filed until an attempt to resolve it has already been made (and a certificate under the rule accompanies the motion). What I see happening is that lawyers let discovery failures go and when they finally realize there is a problem, they have not complied with the letter or spirit of Maryland Rule 2-431.

I think Maryland judges are becoming more serious about the spirit of Maryland Rule 2-431 in trying to resolve discovery disputes. I attached one letter that requested discovery in a motion to compel in a Prince George’s County wrongful death/survival action case and the motions judge’s law clerk called me to ask if this was the only letter I had written. Fortunately, I had written a number of letters. But the point is lawyers in Maryland really need to try to make a concerted effort to push the opposing lawyer for discovery as opposed to simply writing a single form letter and then filing a motion.

When the defendant’s attorney in Maryland fails to provide timely answers to discovery, a plaintiff’s personal injury lawyer technically has two options: (1) file a motion for a court order that compels the discovery under section 2-432(b) or (2) file a motion for immediate sanctions under Maryland Rule 2-433. But if a lawyer is seeking sanctions, then the lawyer is almost invariably arguing prejudice. I do not think Maryland courts are going to be particularly receptive to parties who sit on their rights of further discovery and then later claim prejudice. The argument is underscored by the Maryland Court of Appeals ruling in the Food Lion v. McNeill last month, where the court found that parties should not be permitted to wait to raise the discovery deficiency late in the game in the absence of a timely challenge to that discovery. Food Lion addressed lawyers who waited to raise discovery issues until trial. But the same logic will likely apply to lawyers who do not timely press other parties to meet their discovery obligations and later seek sanctions.

The Maryland State Bar Association is having their annual meeting on November 11th, at the Baltimore Washingon International Marriott, from 8:30 a.m. 4:00 p.m. Friday will feature pre-conference sessions and Saturday's topics will include 5 tracks for small firms and solo practitioners. For a detailed program description and to register for this Maryland lawyers conference, visit the Maryland State Bar Association website.

Prince George’s County Bar Association is sponsoring "A View From The Bench” next Tuesday, October 10th at 6:00 p.m. at Show Place Arena in Upper Marlboro, Maryland. Featured speakers are:

Hon. Maureen M. Lamasney

Hon. Larnzell Martin, Jr.

Hon. Melanie M. Shaw-Geter

Hon. Julia B. Weatherly

Hon. Michael P. Whalen

Hon. Michele D. Hotten

Hon.Toni E. Clarke

This presentation should be of interest to all Prince George's County personal injury lawyers who are handling cases in from of P.G. County judges.

Today is the grand opening of a new trial lawyer blog, the Trial Lawyer Resource Center. Dave Swanner, the co-founder of this group blog, has been putting this project together for almost a year. Dave has rounded up an impressive list of trial lawyers around the country to participate in the blog. All of the authors are personal injury lawyers and the blog is written from the perspective of plaintiffs' attorneys.

I'm thrilled to be one of the contributing authors. I have written a number of posts and will contribute one or two posts a week in addition to my work on the Maryland Personal Injury Lawyer Blog and the Maryland Personal Injury Lawyer Help Center. Evan Schaffer's Legal Underground Blog published today an interview with Dave Swanner that explains more about the genesis of this trial lawyers' group blog. Add it to your favorites.

On Texas lawyer Bob Kraft's blog, he writes a blog on a common theme (click, for example, here and here) discussed on the Maryland Personal Injury Lawyer Blog: that the FDA should do more and the mere fact that the FDA approved a drug should be of little significance in a product liability case involving a pharmaceutical drug. As to the former point, Bob points to a New York Times article last week that discusses an Institute of Medicine (IOM) recommendation on what changes need to be made at and with the FDA. The IOM report suggestions included:

Newly approved drugs should display a black triangle on their labels for two-years to warn that as a new drug, their safety profile has not been established;

Drug advertisements should be limited during this two year period;

The FDA should thoroughly review the safety of drugs at least once every five years;

The FDA should have the power to issue fines, injunctions and withdrawals when drug makers fail — as they often do — to complete required safety studies;

Drug makers should be required to post publicly the results of nearly all human drug trials.

The IOM carries real weight in government and heath care circles. Let's see what happens with these recommendations.

The cap on pain and suffering damages in Maryland for claims arising after today has increased to $680,000. This is also the maximum cap on any non-medical malpractice wrongful death case if there is only one claimant. The wrongful death cap with two or more beneficiaries in a non-medical malpractice case is now $1,020,000.

The pain and suffering cap in Maryland in medical malpractice cases as the result of a bill that was passed last year remains at $650,000. This is also the maximum cap on medical malpractice wrongful death cases if there is only one claimant. The wrongful death cap with two or more beneficiaries in medical malpractice cases that arise after today is $812,500.