Maryland Injury Lawyer Blog

The Maryland Personal Injury Lawyer Blog moves back to Florida again this week where a partner at McDermott Will & Emery, and the head of its bankruptcy department, told a federal judge she was "a few french fries short of a Happy Meal." I have now received an email on this story from 5 different attorneys, including my brother-in-law in Arizona.

Actually, the full quote is "I suggest to you with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place." This is probably directed to the way the details of the bankruptcy plan would unfold. Moreover, although she later su sponte calls for a show cause hearing as to why the lawyer should be permitted to continue to practice before her, the judge did not stop the hearing to address the issue. She simply asked counsel to proceed. Obviously, tone is lost when you are reading a transcript. We have no idea how this really happened.

The way to avoid this issue in the first place is for lawyers to bear in mind that there is trancript being generated. It is also a good idea for lawyers, particularly in this kind of venue, to save Jerry Seinfeldlike efforts. For every time you get a laugh or someone thinks you a witty, someone else thinks you are silly or disrespectful. For the latter, this is certainly Exhibit A.

Of course, this is story is being tossed around the Internet like the dorm slut freshman year (see, I told you how hard it is to actually be funny without offending anyone), tarnishing the reputation of a guy who is probably a fine lawyer. The Internet is making heros (albeit, rarely) and idiots (more often the case) out of people every single day. Sometimes, it is warranted, I'm sure. But more often than not, it is a decent person who either made an isolated mistake or the quote or action is offered completely out of context, as some of the emails I received already have in this case. It is an unfortunate byproduct of the Internet age.

In the last couple of weeks, the Maryland Personal Injury Lawyer blog has put out a lot of data on compensation awards in medical malpractice cases and in auto and truck accident cases. In my research on these posts, I found some other data comparing different states' verdicts. Although this data is a little dated (1994-2000), I thought it was interesting for lawyers in different jurisdictions to compare verdicts:

New York ........... $275,000

South Dakota ..... $120,913

Minnesota .......... $111,488

New Jersey ........ $104,750

Pennsylvania ...... $100,000

Louisiana ........... $ 95,000

Georgia .............. $ 12,000

Oklahoma .......... $ 10,282

Tennessee ......... $ 10,891

Arkansas ........... $ 10,000

North Carolina .... $ 10,000

South Carolina ....$ 10,000

National overall ... $ 45,000

This data is arguably misleading because to the varying thresholds to get to a jury trial in a particular jurisdiction. If a jurisdiction allows, or even requires, jury trials for cases where the plaintiff’s lawyer is seeking, for example, over $10,000, the awards are going to be a lot lower.

In Maryland, for example, where the average verdict in personal injuries cases is around $12,000, many small claim type personal injury cases find their way to Maryland juries. This is because defense lawyers in personal injury cases in Maryland have the ability to remove a case to the Circuit Court from the District Court (if the plaintiff seeks more than $10,000 but less than $25,000). Defense lawyers often do primarily to increase the burden on Maryland personal injury lawyers in jurisdictions where juries are less favorable (counties other than Baltimore and Prince George's). Still, I think the data is interesting because it gives personal injury attorneys some indication of the jurisdictional differences.

There is an interesting footnote to the expected lawsuits regarding Avandia that our Avandia attorneys wrote about a few days ago. The authors of the New England Journal of Medicine article, who discovered the cardiovascular risks associated with the diabetes drug Avandia, found the material for their study on the Avandia manufacturer GlaxoSmithKline's website.

As part of a Paxil-related settlement with the state of New York a few years ago, Glaxo Smith Kline agreed to post the results of all clinical trials to its website, including the clinical trials for Avandia. Medical experts are expected to pressure legislators to require drug makers to fully disclose the result of all clinical trials.

A cardiologist at the Cleveland Clinic, Dr. Steven Nissen, who was one of the first doctors to point out the cardic problems caused by Vioxx, came across the Glaxo website while researching Avandia last year. He and a colleague quickly analyzed the data, and The New England Journal of Medicine released its finding that Avandia posed a heightened cardiac risk. Apparently, Glaxo fought to avoid publishing the data for Avandia and its other pharmaceutical drugs.

The New York Times article reporting on this story would seem to suggest this agreement came back to bite Glaxo. But I suspect the real truth is that less people will suffer serious or fatal injuries as a result of it. This is good for public safety and, in the end, good for Glaxo's bottom line.

If you have had a significant cardiac event such as a heart attack or stroke, please call our Avandia attorneys at 800-553-8082 or click here for a free Internet consultation.

A new study by the “Journal of General Internal Medicine” found that doctors are loath to admit medical mistakes. Virtually every doctor in the study of 538 doctors surveyed – 97 percent - agreed that they would report a theoretical medical error. But only 41 percent said they had actually disclosed a minor medical error they made.

In other words, half the doctors surveyed believe they have never made even a minor medical mistake. "It seems fair to assume that all of us have made at least a minor error, if not a major error, sometime in our careers," Dr. Lauris Kaldjian, a University of Iowa professor of internal medicine said, stating the obvious to the Kansas City Star.

This study conjures up memories of the kind of doctor Alec Baldwin’s character Jed Hill pretended to be in the movie “Malice”. Do this many doctors really believe they have never made even a minor mistake in their entire careers?

Medical malpractice lawsuits do not change the calculus. Data from the survey suggests no link between doctors who had faced malpractice lawsuits and the likelihood of reporting errors. Apparently, having a medical malpractice suit filed against a doctor does not increase the likelihood that the doctor has ever committed a negligent act.

The only logical interpretation of this is that doctors do not commit medical malpractice. Medical doctors and hospitals may want to believe this, but the U.S. government’s Institute of Medicine estimated that 44,000-98,000 Americans die each year from preventable medical errors. This is more than the number of people who die in auto and truck accidents. A critical step in fighting the medical malpractice problem is doctors admitting that there is a medical malpractice problem. We are not there yet.

Forbes put out an article a few days ago about GlaxoSmithKline's own analysis of its diabetes drug Avandia. It reached essentially the same conclusion as the report in the “New England Journal of Medicine,” which came out earlier this week: Avandia may cause an approximately 43% increase in the risk of heart attack. So why didn’t Glaxo do something when it learned of the potential risk that Avandia posed to the millions of users of the drug?

Glaxo’s defense of Avandia is distrubing. Glaxo says that its does not believe that a 43% increase in risk was definitive of a problem, because the risk may be explained by other drugs or diseases.

This may be so. But what did GlaxoSmithKline do? Did they warn doctors or the millions of uses of Avandia and notify them that at least there may be an increased risk of heart attacks, even though GlaxoSmithKline believed that Avandia was safe? Did they allow doctors and end users the opportunity to decide for themselves if Avandia was safe, or if the benefits outweighed the risk? No, Glaxo chose to risk consumer safety.

The “Forbes” article quoted one drug safety expert, Curt Furberg of Wake Forest University Baptist Medical Center, who feels strongly that Avandia should be taken off the market, because of the increased risk of heart attacks: "Either the company suppressed or the FDA was asleep.” He further said that he believes the question as to whether Avandia should have been taken off the market is a “no-brainer."

At some point, an Avandia lawyer is going to be asking a jury this same question in closing argument: Was it a “no-brainer” to take Avandia off the market?

A large clinical study Glaxo is conducting to test the risks of Avandia may be in jeopardy as a result of recent reports of the drug’s risks, according Dr. Ronald L. Krall, the medical director for GlaxoSmithKline who said in an interview that some of the 4,450 patients enrolled in the drug trial have dropped out because of safety concerns about Avandia. Now there is concern
about the ability of the study to continue and they are “considering what to do to prevent people from dropping out of the trial,” according to Dr. Krall. I think they should place more concern on the question of whether continuing their trial will lead to more deaths as the result of the use of Avandia.

For an update, on Judge Jay Spechler, click here.

The Daily Business Review last week wrote an unbelievable article about a battle between an insurance company and its policyholders. This has been the landscape since Chinese and Babylonian traders started issuing insurance about two thousand years ago. But, in this story, the insurance company has expanded its war to include Florida judges.

United Automobile Insurance Company's lawyers are seeking to remove a Florida judge from all Personal Injury Protection (PIP) accident cases involving the insurance company, citing the judge’s alleged bias.

The Florida-based carrier's attorneys have moved to disqualify Broward County Court Judge Jay from “any and all cases involving United Automobile Insurance Company as a litigant.” United alleges that Judge Spechler routinely displays “pre-disposition, prejudice and bias” against its attorneys. In an interview, Judge Spechler, who has served on the bench for 19 years, estimated that, incredibly, two thirds of his cases are PIP disputes with this insurance company.

This is not United Auto's first attack on a Florida judge. Last month, United Auto’s lawyers also moved to disqualify Miami-Dade County Court Judge Jacqueline Schwartz from sitting on PIP cases.

Apparently, United Auto is well known among Florida personal injury lawyers for their insurance attorneys' aggressive fight against its own policyholders making PIP claims. In 2004, Florida's Office of Insurance Regulation fined United Auto $75,000 for fighting 96 percent of its policyholders’ claims, because if the carrier really discovered that much fraud, it was negligent in not reporting it to the state.

Apparently, the gloves are off, and I mean off. United general counsel Charles Grimsley is saying that judges have not treated United fairly in the courtroom, and that he believed judges were being “paid off,” although he admitted he could not prove it. Later, Mr. Grimsley backed away from his allegation by saying he does not think there is "any money changing hands.” United Auto apparently then took out advertisements stating that Mr. Grimsely's statement “does not remotely reflect the opinion of United Automobile Insurance or any of its defense attorneys.”

Ninety-six percent of claims are fraudulent? This is beyond incredible. United Auto is basically declaring war on its policyholders in an effort to discourage claims. United Auto is the leading auto insurance company in Florida. Martin Luther King said that the arc of the moral universe is long but it bends toward justice. I have to think that this arc will soon bend towards the justice of United Auto losing its market share in Florida.

Our lawyers are investigating Avandia, a diabetes drug which may significantly increase the risk of a heart attack. A study to be published in the “New England Journal of Medicine” found that Avandia may increase cardiac risk. The journal’s editor, Dr. Jeffrey M. Drazen, is quoted as saying that, “We view this as the best publicly available data on a very important question. It shows what we regard as a preliminary, but worrisome, signal about cardiovascular toxicity of this drug.”

This journal article does not necessarily mean that there is a products liability case against Glaxco, but the facts are emerging in a manner eerily similar to the Vioxx debacle. In fact, the finding that Avandia raises the risk of heart attack by 43 percent and aincrease the risk of heart-related death by 64 percent was based on a review conducted by Dr. Steven E. Nissen of the Cleveland Clinic, who was among the first doctors to raise questions about the cardiovascular risks associated with Vioxx.

The FDA has advised patients taking the drug, manufactured by GlaxoSmithKline, to seek advice from their doctor. The FDA intends to convene an advisory panel to investigate.

There is some question, however, whether the FDA is best suited to investigate. The New York Times reports that the FDA may have been aware of dangers associated with Avandia seven years ago. In a letter to the FDA on March 15, 2000, Dr. John B. Buse, chief of endocrinology at the University of North Carolina in Chapel Hill, who is about to become the president of the American Diabetes Association, expressed grave concerns about Avandia, citing “a worrisome trend in cardiovascular deaths and severe adverse events” among patients using the Avandia. Dr. Buse's letter was also critical of the Glaxo's marketing of Avandia, accusing the company of “pervasive and systemic” efforts to understate the Avandia’s risks and overstate its benefits.

Avandia, which has been on the market for seven years, is a big money maker for GlaxoSmithKline. Avandia is used by nearly a million people in the United States and two million people per year worldwide, for the treatment of Type 2 (adult-onset) diabetes. With $3.2 billion in worldwide sales last year, it was Glaxo’s second-biggest pharmaceutical product.

If you have had a significant cardiac event such as a heart attack or stroke, please call our Avandia attorneys at 800-553-8082 or click here for a free Internet consultation.

I wrote a blog post today for the Trial Lawyer Resource Center regarding an article I read in the Maryland Daily Record titled "Beware of Bow Ties and Diamonds in Court." You can access it here.

A Baltimore jury yesterday found an responsible for the brain injury and death in 2003 in a shoulder dystocia case and awarded the child’s parents $8.1 million. the damages would be limited to just over $2.1 million under Maryland law putting a cap on awards for pain and suffering.

During the delivery of the child at Mercy Hospital, the child’s shoulders became stuck in the birth canal. This condition, known as shoulder dystocia, occurs when the child's head is able to clear but the shoulders require additional medical maneuvers for the child to be delivered. In shoulder dystocia cases, one shoulder of the baby usually is trapped behind the mother's pelvis, obstructing the baby’s breathing.

It is hard to conjure up a more horrific case. This Baltimore jury that heard all of the evidence this medical malpractice case determined the damages at $8.1 million. Why do we have a law in Maryland that only awards these Plaintiffs about one-fourth of what the jury believed was appropriate?

Metro Verdicts Monthly reports that the median settlement and verdict in Maryland for wrongful death medical malpractice cases over the last 20 years is $900,000. This is far more than the verdicts in Maryland’s sister jurisdictions, Virginia and Washington D.C, which have medians of $750,000 and $665,700.

Looking at malpractice cases more generally, the median medical malpractice jury award in Maryland, according to Jury Verdict Research, is $500,000 in 2003, the last year for which I could find data. Verdicts that year ranged from $54,521 to $7,708,064.

Jury Verdict Research also gives interesting data on the median verdicts in other jurisdictions: Florida - $1,257,386; New York - $1,100,000; Pennsylvania - $1,000,000; Ohio - $850,000; Indiana - $750,000; Missouri - $694,000; North Carolina - $500,000. Not all of this data is comparing exactly apples to apples, because the range changed with the publication date, but I still think this provides an interesting means of comparison for medical malpractice lawyers.

Of course, these figures are misleading, as any medical malpractice lawyer will tell you, because not all verdicts are collectable or at least not fully collectable, particularly today when so many states have caps on non-economic damages. The National Practitioner Databank (NPD), a government reporting system for doctors and hospitals, reveals what is really collected in medical malpractice cases. Every payout (not the verdict amount, but the actual amount paid) in a malpractice case has to be reported to this data bank. NPD’s most recent annual report found that, nationwide, the median award was $170,000.

Going back to wrongful death medical malpractice cases in Maryland, the new cap on non-economic damages in wrongful death malpractice cases is going to have an impact on these figures as time goes on and more malpractice cases are tried and settled with dates of death which are after the effective date of the new statute.

Yesterday, Washington Governor Christine Gregoire's signed into law a bill to strengthening Washington's first party bad faith law. Maryland recently passed its own first party bad faith law but Washington's is much stronger. Although the Washington law regrettably excludes health insurers, it eases the stringent requirements for first party bad faith lawsuits, allowing policyholders who are treated unreasonably by their own insurance company to recover three times the actual damages. Now that is a first party bad faith bill was some real teeth. The Washington law also allows for an award of attorneys' fees and costs to the claimant.

I'm hoping that the success of the new Maryland first party bad faith bill will bring about a more stringent law in the future in Maryland. Virginia, which has a similar statute to Maryland's (Virginia Annotated Code §38.2-209), could also use a stronger law that will do more to discourage insurance companies from making the motto of "taking premiums and denying claims" a common business practice in Maryland and Virginia.

According to Metro Verdicts Monthly, the median motor vehicle accident wrongful death case in Maryland is worth $505,000.

This is interesting information. What does this data tell an auto accident or truck accident lawyer practicing in Maryland? Not much. Why? The motor vehicle accident data has little probative value, because it does not include the amount of the insurance policy at issue. We have settled wrongful death claims for $20,000 in cases where that is all the available insurance, and the defendant had no meaningful assets. Uninsured motorist cases also bring down the median and average values of auto accident wrongful death cases, because plaintiffs' attorneys are overly reasonable in requesting damages in a wrongful death uninsured motorist case, due to the fact that the lawyer knows that he/she will be limited in the damages that can be recovered.

This data becomes more interesting when you consider that the median settlement/verdicts in Washington DC and Virginia are much greater than in Maryland, $941,500 and $800,000, respectively. Because verdicts in Maryland tend to be higher than those in Virginia, mostly because of verdicts in Baltimore City and Prince George's County, I think it is safe to assume that the Virginia median is higher because of settlements that are due to the cap on non economic damages.

Tomorrow, the Maryland Personal Injury Lawyer Blog will look at median settlements and verdicts in wrongful death Maryland medical malpractice cases.

I spent a good bit of time this weekend making additions to the Maryland Personal Injury Lawyer Help Center. What I have done is pull up old emails that requested forms/documents that we have (and forwarded to the requester) but did not have a category on the PI Help Center that really fit the document. So I added a miscellaneous forms and letters category. So far I have added (1) Sample Release, (2) Sample Retainer Agreement (the most requested), (3) Sample HIPPA Authorization, (4) Sample Lost Wage Form, (5) Sample AISG Form (to get client's claim history), (6) Sample Personal Injury Intake, (7) Sample Request for Traffic Light Sequence Report, (8) Sample Affidavit of No Insurance, and (9) Request for Judical Notice as to Time, Speed and Distance.

If there is something you need you think our lawyers may have, let us know and I will be glad to send it to you. The readership of the Maryland Personal Injury Lawyer Blog has gone up dramatically in recent months and it is pretty much impossible to play phone tag with everyone in order to find out the document you seek. Please contact us with any requests through the contact form on this blog or email me at ronmiller@millerandzois.com.

The Kugel mesh hernia patch is used to repair ventral hernias. There are over 750,000 hernia operations each year in the U.S. The Kugel hernia mesh patch is manufactured by C.R. Bard, Inc., and their subsidiary, Davol, Inc. who owns the patent on the device. The Kugel mesh patch is made of two pieces of mesh that surround a flexible plastic ring. The surgeon places the mesh patch in a small incision. The surgeon would fold the patch and place it at the site of the hernia. The released ring would then spring back into its original shape, flattening the patch. The meshlike material would serve as a substrate, allowing the hernia patient's own tissue to grow and assist in healing the hernia.

The Kugel Mesh Patch can break, however, leading to bowel perforations and chronic intestinal fistulae. These are very serious conditions that pose a significant health risk to Kugel hernia patch patients. The problem with the Kugel hernia patch is that the plastic component could break and cut through a patient's internal organs and tissue. The FDA has received reports of more than 80 injuries and other problems possibly related to it, including several fatalities. Our Kugel hernia patch lawyers expect an increasing number of reports of injuries in the weeks and months to come.

In late 2005, C.R. Bard sent out a recall on the Kugel patch, urging doctors to stop using some versions of the product, because a plastic component could break and cut through a patient's internal organs and tissue. Our Kugel patch lawyers believe that, at least by this time, C.R. Bard knew, or should have known, that other lots and versions were also implicated, both because of the evidence available to them, and because all of the Kugel patches had the same or similar memory recoil ring, which was causing the defect in the Kugel patches. Accordingly, our Kugel mesh hernia patch lawyers expect that more, if not all, of the patches will eventually be recalled.

Since December, there have been three separate recalls of different models of the Kugel patch. The FDA says surgeons and hospitals should immediately stop using the recalled patches and return the unused patches to the company. Patients who have been implanted with one of the recalled Kugel devices should consult their doctor or surgeon. You should seek immediate medical attention if you are experiencing persistent and/or unexplained abdominal pain, fever, tenderness or any painful lumps or bulges at the site of the Kugel implant/surgery, or any other unusual symptoms.

Our lawyers are currently reviewing Kugel mesh hernia patch cases throughout the United States and Canada. If you have one of these implanted devices, you may be entitled to compensation. Call our Kugel mesh hernia patch lawyers at 1-800-553-8082 click here for a free web consultation.

We are handling a red light/green light auto accident case that occurred in Towson, Maryland a few years ago that resulted in substantial permanent injuries to our client. Trial is a few months away. The insurance company for the Defendant is the Maryland Automobile Insurance Fund (MAIF). Their attorneys recently filed a motion to bifurcate the trial into two separate trials for liability and damages.

The Defendant would not seem to benefit if the case is bifurcated. The concern raised by Defendants – the cost and effort of the liability case – is of no consequence to the insured Defendant. So, practically speaking, why was this motion filed?

If the case is bifurcated, the chance of a bad faith claim against MAIF evaporates; it would simply offer its $100,000 (an extremely large policy for MAIF, parenthetically) policy limit in the event Plaintiff prevailed on liability because, as Defendant’s motion tacitly concedes, this value of the case is in excess of MAIF’s coverage. Accordingly, while bifurcation would be a loss for Plaintiff, it would also be a loss for the insured Defendant who will lose any leverage that he has to encourage MAIF to settle this case or any claim he has against them for bad faith should they not make reasonable efforts to settle the claim. Should the case be bifurcated and Plaintiff prevails on liability, Plaintiff will proceed on with the damages trial that will likely result in an excess verdict. This would leave MAIF in fine shape, fully insulated from a bad faith claim and protected from allegations that it failed to properly defend its insured by, for example, having a defense medical examination performed on the Plaintiff. Defendant would be left holding the bag.

This takes us back to the flip title of this post: Who's your daddy? What are the chances the Defendant’s lawyer, who was hired and paid for by MAIF, advised his client of these personal risks to him when seeking bifurcation? When defense lawyers serve two masters, or sticking with the pop culture theme, two daddies, conflicts abound. Every defense lawyer in Maryland knows that these conflicts have to be resolved in favor of the client, not the insured.

Most insurance company lawyers our attorneys work with walk this delicate balance well. Obviously, I do not have all of the facts and, of course, there could be facts of which I may not be aware that would change the analysis, most notably the unlikely event that MAIF told the client or his attorney that it would cover any verdict in excess of the policy limits. But, somehow, I doubt it. There is no question that the tripartite relationship between the insured, insurance company and the insurance defense lawyer is complicated. But the insurance defense lawyer owes a paramount duty to his client even if the insurer hired him and pays his bill. While most insurance lawyers are mindful of this duty, it is still way too often forgotten.

Virginia Lawyers Weekly reports today on a $1,000,000 settlement in a medical malpractice Erb’s palsy case. The interesting thing about this case is that the injuries occurred during the course of a cesarean section. The father of the child claimed he witnessed the obstetrician applying excessive force to the fetal head after the baby’s shoulder did not clear. Plaintiff’s expert testified the doctor failed to make the incision large enough to extract the baby’s head and then inappropriately applied traction while the head was still entrapped. Fortunately, the child was promptly diagnosed with a brachial plexus injury that was confined to the child’s neck (at C5/C6). After surgery, the child has a good prognosis for a functional arm and hand.

Shoulder Dystocia cases are not rare but this is the first case I have seen or read about where the OB/GYN’s malpractice was the failure to make a large enough C-section incision.

Goal number one when your client is giving a deposition is to do no harm. The greatest harm your client can do in almost any personal injury case in his/her deposition is to get caught in a lie. Clients are most prone to "lie" about prior car accidents because they genuinely do not remember them. But a smart insurance company lawyer may turn an innocent failure to recall into a litmus test on the client's credibility. In the end, as much as we as personal injury lawyers like to make the cases about ourselves - particuarly when we get a great verdict, we all do it - the importance of our credibility/likability is a distant second to the importance to that of our client.

How can you solve the problem? Obviously, a good lawyer spends time before the deposition discussing the issue with the client, explaning in very direct terms that prior medical history or claims history will be uncovered by any competent defense attorney or adjuster with access to a computer and/or the medical records. But, again, in some circumstances, the client may not remember whether they were injured on the job or made a claim for a car accident in which they were involved.

The backup to your client's best recollection is to have your client fill out a claims index so you can have access to the exact same information as the insurance company. American Insurance Services Group (AISG) is the company our lawyers use but there are others that do the same thing for the same price. For twenty-five dollars, you can get a full claims history for your client, putting the personal injury lawyer on par with the insurance company in terms of information about prior accidents and claims.

It is also worthwhile for the lawyer to compare the information obtained from the client during the intake to his index form. If the client said this is his first accident and the claims report says he has had 5 previous car accidents where he has made claims, you know you have a problem.

My partner, Laura Zois, spoke today in New Orleans at the annual AAJ (formerly Amercian Trial Lawyers Association) Jazzfest seminar on auto torts. Many in the audience had questions after her presentation. She said that almost a third of these lawyers asked her for an AISG index form. I have attached a copy here if you would like a copy of the form.