Maryland Injury Lawyer Blog

The New York Times reported yesterday that auto insurance companies are raising premiums in New York City despite paying out less in claims. According to a report released by the city comptroller, state regulators have not "adequately policed the industry." In New York, the fees for auto insurance are regulated under the theory that auto insurance is mandatory.

The private passenger auto insurance loss ratio — the percentage of each premium dollar that goes to pay claims — fell to 48.4 percent in 2005 from 78.3 percent in 2000. From a business standpoint, this is a remarkable reversal of fortune: 30% higher margins. The report concludes that regulators should reduce total auto insurance premiums statewide by $1.5 billion a year.

Just thought you might like to know.

I came across a Health Law Week article last night about an Illinois appellate court ruling in which the court found the trial court committed reversible error when it refused to submit to the jury a special interrogatory sought by the defendant doctor's medical malpractice lawyer to test the jury's position on the foreseeability of the patient's injury.

The case was a wrongful death medical malpractice claim against a doctor and a hospital. The jury found both were negligent in failing to treat and care properly for the decedent who committed suicide while a patient at the hospital and awarded Plaintiffs $1,212,000.

On appeal, defendant doctor’s attorney argued that the trial court erred in its refusal to submit the following special interrogatory to the jury: "Prior to the death of the Decedent, was it reasonably foreseeable that she would commit suicide or act in a self-destructive manner on or before December 6, 1997? Yes ___ No ___."

The Illinois appellate court reversed, finding that the medical malpractice defendants were prejudiced because a negative answer to their interrogatory would have been inconsistent with the general verdict against them.

It is hard to comment on whether this is an appropriate ruling in this case without seeing what the jury instructions were. But I would think that an Illinois jury would have received some sort of foreseeability instruction. It would seem unfair to require a special interrogatory as a matter of law on the verdict sheet. Using this logic, every element of plaintiff's malpractice case should have to be spelled out on the verdict sheet. I would think this is best left to the sound discretion of the trial judge. Click here for some thoughts on foreseeability law in Maryland.

The Maryland Trial Lawyers Association is putting on a lunch seminar on January 11, 2007. One of our lawyers, Rodney M. Gaston, will speak to what Maryland personal injury lawyers handling and trying a Maryland uninsured motorist case should know. The topics he will address include:

How lawyers preserve a underinsured claim with multiple defendants and plaintiffs

Declaratory judgement actions in uninsured motorist cases

If you have any questions about this seminar or any other Maryland Trial Lawyer Association educational program, Rod is the Chairman of the MTLA Education and Programs Committee and will be glad to answer any question you may have. You can reach him at 410-553-6000 or at RodGaston@millerandzois.com.

A federal jury in New Orleans found that Merck's Vioxx was not responsible for a heart attack suffered by a Utah man. Merck had won two previous federal cases and lost the third. In state court it has won three and lost three. Jurors decided a fourth in Merck's favor, but the judge later ordered a retrial.

Plaintiff's lawyers had thought this trial was one of the better Vioxx cases. But, as often happens, the trial uncovered some interesting new evidence on cross-examination by Merck's lawyer: the Plaintiff realized he had not taken Vioxx for several days before his heart attack on July 25, 2003.

Rather than focusing on other reasons that likely caused Mason to have a heart attack -- his age, his sex, a relative who had a heart attack -- Merck's lawyer Phil Beck, an extremely good lawyer, focused his closing argument on the four days without Vioxx. "Vioxx cannot cause a heart attack if it is not in the system," he said. "Vioxx is out of the system in a few days. Once it's out of the system, it cannot have any effect."

As I have said all along, plaintiffs are going to lose most of these cases on specific causation. General causation is hard to dispute - the evidence is overwhelming that this was a bad drug and Merck covered up the risks associated with Vioxx. But the trick for plaintiff is to show that the harm was actually caused in an individual case.

The Maryland Trial Lawyers Association's Medical Negligence Section is having a dinner/seminar on Thursday, November 30, 2006 at 6:30 p.m. at That’s Amore Restaurant in Columbia, Maryland. The topic: Shoulder Dystocia-Case Evaluation and Risk Management Issues: A View from the Inside with an Interactive Demonstration. The speakers are:

Dr. Jonathan Hodor, OB/GYN, will be speaking on shoulder dystocia and hospital risk management issues within the context of shoulder dystocia cases. He will discuss charting, review of records, what to look for in a shoulder dystocia case and how to evaluate records. Dr. Hodor will also demonstrate the mechanics of shoulder dystocia maneuvers which must be followed to meet the standard of care. Finally, he will discuss how to evaluate operative notes in shoulder dystocia cases, and what key elements should be contained in those operative notes.

Catherine Bertram, Esq. is a former risk manager at Georgetown University Hospital and she will address risk management issues. She will discuss how the risk manager assesses shoulder dystocia cases, how to bring volatility to your case, how to make a case that will force the risk manager to fully appreciate the merits of your case, and how hospitals review and evaluate cases. She will also provide insight on how hospitals train their medical doctors with respect to risk management issues.

Shoulder dystocia and brachial plexus injuries are obstetrical complications that occurs in 0.5% to 1.5% of all births. Shoulder dystocia stems from complications during delivery where the infant's head is able to clear but one shoulder of the baby becomes trapped behind the mother's pelvis during delivery. When this happens, additional medical maneuvers are required to properly deliver the infant.

Thankfully, most shoulder dystocia cases do not result in permanent injury. In the unfortunate minority of shoulder dystocia cases where there is a permanent injury, not all are medical malpractice cases. This seminar should give the Maryland medical malpractice lawyer a good idea of whether you have a shoulder dystocia case and what challenges the attorney will face in prosecuting such a claim.

A difficult question arises when the defendant in a car or truck accident case argues that his vision was obscured due to factors beyond the driver's control. For example, if a truck driver driving a tractor trailer is blinded by the glare of the sun or the driver's vision is obstructed by a dust storm. Is this a legitimate defense in a truck accident case?

Maryland law does not have a case directly on point. But the answer appears to be a question for the jury, not for the court, according to a majority of other jurisdictions. Most jurisdictions will not find a driver of a vehicle negligent as a matter of law in obstructed vision cases because the issue is one of reasonableness. Accordingly, I would expect a Maryland court to find that when vision is partially or completely obscured, the jury should determine whether the defendant's failure to avoid the accident was reasonable under the general negligence test of whether the defendant acted as a reasonable prudent driver would have under all of the circumstances.

Unfortunately, the byproduct of this rule is defendants' lawyers in Maryland personal injury auto and truck accident cases claiming that their clients violated the "rules of the road" through no fault of their own. How a Maryland jury might ultimately find is going to depend on the credibility of the lawyer's injured client and the credibility of the defendant driver. Even if the defendant has no credibility (either intrinsically or factually), it still gives the defendant's attorney something to hang their hat on for the purposes of denying the claim. Maryland personal injury lawyers who stick to their guns and believe in their case will probably do just the same in terms of final outcome for their clients in these types of attorney manufactured defenses. Lawyers who blink because the defense lawyer raises any type of defense - however specious - will not do as well, which is why defense lawyers manufacture artificial defenses in the first place.

The Philadelphia Enquirer reported yesterday on $20 million a jury awarded to a 6-year old boy in a medical malpractice case after he went blind almost immediately following his birth. The verdict is considered among the largest awarded in a medical malpractice case by a suburban Philadelphia jury. Shanin Specter, the medical malpractice lawyer for the child and his parents, said the jury found the hospital was 60% responsible for the child's injuries, and that the head of the neonatology unit was 35% responsible. The jury also found malpractice on the part of the pediatric opthalmologist and the child's pediatrician's group, 4% and 1%, respectively.

As regular readers of this blog know, my twins were recently in the NICU at Anne Arundel Medical Center. In fact, they were released just this Saturday. I appreciate in a new way how awful this must have been for the child and his family. With the grace of God, our experience was just the opposite. Almost without exception - almost - the doctors and nurses there were absolutely fantastic. One of the pediatric neonatologists spent literally hours with me discussing the medical scientific literature, looking at the nuances of my children's medical records and diagnostic testing. She even showed me how to read head sonograms, at least to the extent it mattered to what we were looking for with my children. Similarly, my pediatrician was amazing. Today, he gave me the results of the literature search that he did solely for me relating to the epidemiological studies he believed were relevant to the risks to preterm babies.

Of course, I would not be surprised if this boy's doctors in Philadelphia were great doctors who cared a great deal about this little boy that they treated. But, at least according to this jury, a terrible mistake was made that this boy will carry with him for the rest of his life (or, until a cure is found - great developments have been made of late in curing the blind and sight impaired).

Metro Verdicts Monthly came out today with a new statistic on the trial and settlement value (they are lumped together) of fractured hip cases. The median settlement values for fractured hip cases are:

Maryland: $160,000

District of Columbia: $200,000

Virginia: $115,000

As a point of comparison, Jury Verdict Research last year provided the following data on hip fractures:

Award Median: $175,000

Award Mean: $435,581

Probability Range: $80,978-$382,500

Award Range: $1,690-$7,888,900

In this data, the gap between the median and the mean is striking. Nine percent of hip fracture awards are over $1 million, which certainly inflates the average.

I think many personal injury lawyers who have not handled fractured hip cases might be surprised by the how high these verdicts and settlements are in Maryland and around the country. This is probably because fractured hips often occur in our elderly population with significant trauma. But if you are injured in a car or truck accident, there is rarely a legitimate pre-existing condition argument that can be made.

A hip fracture from auto and truck accidents can be a permanent, life altering event for some patients, oft leading to impaired balance and gait and loss of functional independence. The value of a hip fracture case may also depend upon the type of hip fracture, which directs the type of intervention that is required. Only one-third of fractured hip cases require surgery, but that number is much higher for hip fractures suffered in car and truck accidents.

When a personal injury lawyer settles a hip fracture case, the lawyer should advise the client of the risks associated with settling a hip fracture case. Insurance companies will often seek to settle a hip fracture case quickly, knowing a refracture or a secondary hip fracture is a good possibility in these cases. The client has to make the call, but the lawyer should remind the client that a settlement is final and while the expectation of potential future injury may be factored into the settlement, the value of a hip fracture case will increase if there is a refracture or secondary fracture.

The Baltimore Sun reported on a truck accident on Monday in northern Baltimore County (Cockeysville) where a tanker carrying 2,800 gallons of heating oil careened off a road, spilling about 400 gallons of the fuel into a stream, authorities said. The truck driver was apparently making a turn on Ivy Hill Road, near Oregon Ridge Park, and lost control of his truck. He crashed through a guardrail and rolled down an embankment. The driver was flown by state police helicopter to Maryland Shock Trauma Center, where he was listed in serious condition.

Incredibly, if true, the Baltimore Sun quotes a nearby resident (who lives less than one block from the stream) who said he has seen more than 100 vehicles crash into the water or the guardrail. Maybe it is time to take another look at the safety of this intersection, don't you think?

Hopefully, the truck driver will make a full recovery. Fortunately, Maryland Department of the Environment indicated that the oil was contained and there were no signs of a fish kill or visible damage.

The school bus accident study released today by Columbus Children’s Research Institute that will be published in the journal, Pediatrics, found that school bus-related accidents send 17,000 children to the emergency room each year.

Maryland is no stranger to school bus accidents. Anne Arundel County schools had three school bus accidents in a two week span last fall. But, thankfully, very few of these bus accidents lead to life threatening injuries. One-third of the injuries were minor strains and sprains, and 97% of children injured in school bus accidents were treated and released from the hospital immediately.

There is no question that school buses are a relatively safe means of transportation. Here's an incredible statistic: a child is 13 times safer in a school bus than in their parent’s vehicle and 44 times safer than traveling with a teenage driver.

Still, the co-author of this study says the results indicate a need for seat belts on school buses. It is hard to disagree. Last year a Wicomico County bus driver in Salisbury was charged with failure to yield the right of way while making a left turn in an accident that tragically killed a school bus aid. I do not know whether a seat belt would have saved this woman's life. But you have to think that seat belts on buses would not only save at least some lives but also lead to decreasing the 170,000 injuries reported in school bus accidents each year.

The Maryland Daily Record reported last week that a St. Mary's County, Maryland jury awarded $270,000 to a 55 year-old Mechanicsville woman, finding that her chronic lung disease was exacerbated by mold, fungi and other toxic substances in her home. Plaintiff's attorney was Scott Nevin with the Law Offices of Peter T. Nicholl. (I used to run into Scott when I was defending lead cases in Baltimore City and he was working for Saul E. Kerpelman & Associates.)

Scott deserves a lot of credit, this is a pretty impressive verdict for a mold case in St. Mary's County. Scott correctly told the Maryland Daily Record that "St. Mary's County is a rural county and, generally, they don't give large verdicts in personal injury cases." Apparently, he also won a $375,000 verdict for a mold suit in Baltimore City Circuit Court in September against the Housing Authority of Baltimore City.

The landlord's attorney was William N. Zifchak of Upper Marlboro. Metro Verdicts Monthly reported that the defendant's attorney offered a $100,000/$25,000 high/low before trial. Plaintiff's last demand was $285,000.

The Maryland Court of Appeals affirmed the Maryland Court of Special Appeals' holding today in Baltimore v. Hart, which upheld the Baltimore City Circuit Court's admission of the Baltimore City Police's regulations that police officers are required to follow in emergency situations. Maryland's highest court approved of the trial court's allowing the admission of the regulations and the use of the relevant portion of the regulations to form one of the jury's instructions. The Maryland Personal Injury Lawyer blog wrote about the Court of Special Appeals' decision back in February.

The journal, Business Insurance, last week reported that medical malpractice insurers are reporting improved loss ratios as a result of "nearly steady frequency and moderating severity of claims." This means doctors can expect stable medical malpractice insurance rates in the future, at least in some areas of the country.

John P. Gismondi, a plaintiffs' medical malpractice attorney is quoted as saying that "The statistics nationally bear out the fact that over a 25-year period, there hasn't been any great spike in jury awards or payments on claims . . . when adjusted for inflation." Mr. Gismondi also cited a Harvard School of Public Health study done this year that found that most medical malpractice claims that were without merit were resolved without the insurance company paying a single penny.

Interestingly, Paul Greve, a vice president at Willis Healthcare Practice in Nashville, Tennessee said that, according to defense firms, jurors favorable to defendants report that they have been affected by media reports about large damage awards. If true, this shows that proponents of medical malpractice tort reform are winning the hearts and minds of at least some jurors.

A Jury Verdict Research study found that the median compensatory award for personal injury trials in Minnesota is $32,468. To the delight of Minnesota personal injury lawyers, the study also found that plaintiffs recovered damages in 67% of personal injury cases that go to trial. Both of these statistics are higher than those in Maryland. The median compensatory award in personal injury trials in Maryland is $12,813. Specifically, in auto accident cases in Maryland the median verdict is $11,277. This data is arguably misleading. Many small claim type cases find their way to Maryland juries because defense lawyers in personal injury cases in Maryland 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 increase the burden on Maryland personal injury lawyers.

The Los Angeles Times reported yesterday on a study published in the journal, Spine, questioning the use of implanted hardware in spinal fusion surgeries for back problems. The Spine study found that the implantation of hardware does not improve results. The authors also determined that the hardware carries a higher risk of complications.

It is hard to offer a lot of opinions on this without seeing the study. (Oh, yeah, and the not being a spinal surgeon part.) Also, this is just one study. But in our practice in Maryland, our lawyers see a lot of herniated disc injuries and other types of back complications resulting from auto and truck accidents. Rarely does hardware seem to be a magic elixir for the patient. Nor multiple surgeries, which many times do not have a better outcome than the preceding surgery. One of our lawyers has an auto accident case in Baltimore where the client is on his 8th back surgery (no prior back complaints before the car crash). But that is not to say that it is not medically indicated because sometimes you would rather have a 20% chance of success than a 5% chance. (You would be amazed at how many medical malpractice calls our attorneys get claiming negligence of the doctor in performing back surgery. Unfortunately, sometimes there are bad results in the absence of medical malpractice, which is almost always the case with a bad surgical outcome from a back surgery.)

That's the bad news. The good news is spinal surgery has come a long way. Not that many years ago, spinal surgery required a large incision and the patient was left in a body cast for six months to a year. Just last year, a spinal surgeon at the University of California performed one of the first minimally invasive spinal surgeries in the U.S. using a new technique to stabilize the lumbar spine called axial lumbar interbody fusion. The fusion requires only a tiny incision in the back and can have patients up and walking with little pain within hours of leaving the operating room. Absolutely incredible. Interestingly, the fusion is done in the front of the spine without having to go through the abdomen. The technique was developed 5 years ago by an interventional radiologist. The first surgeries were performed in Brazil, where 33 patients have been operated on since the technique was introduced there in 2003. The Food and Drug Administration (FDA) only recently approved the procedure for use in the U.S.

Who knows what the long term prospects for these patients will be? But many of the early returns have been very positive. Hopefully, the next ten years will provide a lot of relief for patients with chronic back pain.

The Maryland Trial Lawyers Association Nursing Home Section is having a dinner on November 9, 2006 at 6:30 p.m. at Kings Contrivance Restaurant in Columbia, Maryland. The topic is wound care cases and what the plaintiff's attorney should be looking for in analyzing potential nursing home medical malpractice cases. The speaker will be Glenda Motta, RN, MPH, who has over 30 years of clinical and administrative wound care experience.

If you are looking for a spotless clean, state-of-the-art health club in Millersville and Severna Park, Maryland, check out Club One Fitness on Benfield Blvd. It is really is most beautiful health club you will ever see and the environment is great for people of all fitness levels looking to fit fitness into their lives. The Club One Fitness website is currently under construction. For information, call 410-729-3900.

You will find that Club One Fitness not only has the tools to help you look your best but you will also find fitness a lot more fun. This health club is conveniently located in Millersville less than 1 tenth of a mile from Route 97 and Benfield Road which also makes it convenient for people going to/from Annapolis, Crownsville, Arnold, Severn and Baltimore. The fitness club includes:

Basketball court
Brazilian Jui Jitsu
Boxing
Boxing classes
Cardio training equipment
CardioTheater
Certified personal trainers
Childcare center
Complimentary day lockers, towels and spa toiletries
Complimentary personal orientation and program design
Free weights
Group exercise/aerobics
Message therapy
Oxygen bar
Pro shop
Saunas
Strength training equipment
Well-appointed locker rooms
Yoga

Take the time to check it out. You will not be disappointed!