Maryland Injury Lawyer Blog

For years, pharmaceutical drug manufacturers have argued that the FDA approval of a drug preempts a duty to warn claim. If this argument had succeeded, FDA preemption would bar claims for injuries caused by a manufacturers' failure to warn about risks associated with their FDA-approved prescription drugs. President Bush’s administration has long supported this view in spite of the fact that his FDA has often been accused of not minding the store with respect to the risks associated with the drugs it approves.

Today, President Bush decided not spend to political capital on this issue, signing the Prescription Drug User Fee Reauthorization Act (PDUFA), H.R. 3580. This new law creates new federal safety requirements for pharmaceutical companies. This bill makes crystal clear that regardless of FDA approval, the duty to warn remains with the pharmaceutical companies to adequately provide a meaningful warning about the risks associated with the use of their product. Of course, the manufacturer's duty to warn the ultimate consumer of prescription drugs is limited, as it probably generally should be, to advising the prescribing doctor of the drug's potential dangers in the absence of contrary FDA regulations. The FDA maintains the authority to require label changes but the burden to warn rests with the pharmaceutical company. In other words, pharmaceutical companies can no longer hide behind the FDA’s skirt and argue that FDA approval absolves them of the duty to warn. Drug companies certainly can still argue to the jury that FDA approval is indicia of the fact that no duty existed.

This is the first time Congress has made any comment on the issue of labeling of pharmaceutical drugs. I have moderate political views and I try very hard not to make the Maryland Personal Injury Lawyer Blog about politics. But there is no denying that this bill never gets passed if the Democrats do not take control of both houses of Congress.

The Maryland Daily Record yesterday reported on a $4 million verdict an Anne Arundel County jury awarded to the parents of a 5 year-old boy who drowned in the Crofton Country Club pool in 2006. The parents of Connor Freed filed suit against D.R.D. Pool Service, Inc, who managed the pool for the country club. The boy was at the pool with some family friends and was found floating in the pool after a trip to use the bathroom. The suit alleged that the pool was an adequately supervised by only one, 16 year old lifeguard with 3 weeks' experience. It further alleged that CPR was performed incorrectly and that a defibrillator should have been used. (D.R.D. filed a cross-claim against the family friend but the jury found him not liable.)

Interestingly, the parents' claim for the child's conscious pain and suffering was dismissed in a pretrial ruling. I do not know all of the facts but unless he was unconscious when he hit the water, I cannot imagine how there could not be a survival action for conscious pain and suffering.

The jury award was 2,000,706 for each of the child's parents. The 706 represents the child's birthday of July 6th. That gives me goose bumps. Regrettably, the real recovery will only be about $1,020,000 (plus an economic damages) because that is the cap for non-economic damages in a wrongful death case with two or more beneficiaries.

If you read Maryland Personal Injury Lawyer blog regularly, you are tired of hearing me say this over and over again. But this jury picked an incredibly specific number as compensation for these parents. Does anyone think this is an unfair award? If the award is not unfair, why does Maryland law cap damages in these cases? It is just wrong and this is one of those cases that underscores the injustice of Maryland's cap on non-economic damages in wrongful death cases.

Connor's parents have started the Connor Cares Foundation whose mission is to get legislation passed for pool safety standards and get a standardizes pool rating safety system in place nationwide. It is nice that these these parents are trying to achieve some good from such a tragedy.

I have three small kids and a swiming pool. My wife and I are pretty obsessed with pool safety. We have a lot of systems to ensure safety and I am still terrifed by the pool. Every time we start to let our guard down even a little bit, I am reminded of a chilling stat: it is safer to have a gun in the home than a pool in the backyard.

On September 25, 2007, Topps Meat Company ordered a recall of over 21 million pounds of ground beef products. This is the third largest recall in U.S.D.A history. Reports of at least 28 cases of illness caused by suspected E. coli bacteria led to the recall. Ten persons are known to have been hospitalized in this outbreak.

Incredibly, according to an e-mail from an employee at the USDA, tests confirmed the presence of the E. coli bacteria strain O157:H7 in Topps Meat Company hamburgers on September 7th. This is the point where they knew for sure there was a problem. Yet they waited another 17 days to recall this meat.

The ground beef products being recalled have a "sell by date" or a "best if used by date" between September 25, 2007, and September 25, 2008. All these recalled Topps Meat Company products will have a U.S. Department of Agriculture establishment number of EST 9748. Topps Meat has asked that consumers who find the products at home cut off the UPC code and return it to Topps for a full refund, then dispose of the product immediately. In Topps’ defense, it is worth noting that they have seemed to handle this well, at least as of September 25, 2007. But there is still a great deal of investigating that needs to be done to determine who knew what and when.

E. coli bacteria is found in the intestines of both humans and animals. E. coli contamination can occur with negligent food preparation. Symptoms of E. coli exposure usually begin within a few days of exposure and can last for up to ten days. Symptoms include diarrhea with or without blood, severe stomach cramps, and fever. Some exposures to E. coli can lead to kidney failure and death.

The Baltimore Sun reports that the extension of a state program that subsidizes doctors' malpractice insurance premiums is no longer in need in light of a $68.6 million surplus reported by the state’s leading malpractice insurer, Medical Mutual Liability Insurance Society of Maryland.

Earlier this week, the new state Insurance Commissioner, Ralph S. Tyler, ordered Med Mutual not to proceed with plans to pay out the $68.6 million as a dividend until it can be determined how much should be returned to the State of Maryland to repay the $80 million paid out to subsidize doctors.

The Baltimore Sun reports that medical malpractice pay-outs in Maryland peaked in 2003 and have declined every year since 2003. The number of paid medical malpractice claims in Maryland has dropped 32 percent in the past three years, 50% more than the national average.

So much for the medical malpractice crisis that reached its apex two years ago when the Maryland legislature passed a bill to further limit the ability of medical malpractice victims in Maryland to receive the compensation deemed appropriate by Maryland juries.

Maryland medical malpractice lawyers during the “medical malpractice crisis” two years ago claimed that Med Mutual had cooked their books to make the numbers seem far more dire than they actually were to elicit support for greater medical malpractice reform. Now that this appears to have been proven correct, shouldn’t we go back and reconsider the lowered medical malpractice cap in Maryland? The problem is that the politics of this is such that the pendulum never swings back toward victims’ rights.

Comically, the Maryland State Medical Society’s (MedChi) executive director, Dr. Martin P. Wasserman, said that while MedChi still intends to seek greater malpractice reform, he further stated, "I don't think we'll be able to come in and say, `The sky is falling.'" This is ironic coming from an organization whose motto has been “the sky is falling” on the issue of medical malpractice insurance premiums.

The debate over medical malpractice tort reform in Maryland has always been sung to the same tune: "Do we need to limit runaway juries by impeding their ability to award damages they deem appropriate?" The question implies that justice is not being served because juries are (1) wrongly siding against doctors on the question of medical negligence, and (2) awarding more in damages that justice requires. Both the doctors and their insurance companies and the medical malpractice lawyers and victim’s advocates argue their respective points by way of examples.

In this battle to tell the story that tells the story, the doctors are going to prevail because they illustrate the easiest of scenarios to latch onto mentally -- excessive verdicts. It is hard to extrapolate anything from a zero verdict in a serious medical malpractice case because you would have to determine whether there was negligence. This would take way too much time for Joe Public.

(I do not say this in a condescending way; there are lots of issues in society where I am the rather lazy Joe Public myself. The reality is that we are cannot spend our time getting our minds around every issue of the day. Nor should we. We should, however, all be investing the time to figure out what is going on in Iraqi. Joe Public has not spent time on this issue either and for this, he does deserve scorn. I would continue on but I'm already digressing way more than I normally do or should.)

So what happens if Joe Public extrapolates that a jury gave a $10,000,000 award for injuries that do not sound like they are worth $10,000,000? This $10,000,000 example, one single case, proves that juries give excessive awards, and by inference, Joe Public concludes that juries must be prone, for sympathy or whatever reason, to finding against doctors on the issue of liability.

There is a genuine lack of honesty from both sides of this debate. Actually, the silliest argument comes from medical malpractice lawyers: “Caps on economic damages do not actually decrease doctors' insurance premiums.” I have heard this recited by people a lot smarter than I am. But it is just plan moronic and it defies the logic of every possible applicable economic principle to believe this to be true. But it is recited and recited again probably because it resonates with Joe Public better than the more complicated explanation involving justice for a relatively small number people in situations in which most people never expect to find themselves.

Plaintiffs' medical malpractice lawyers like to do the whole self-flagellation thing on this issue, saying that medical malpractice lawyers are doing an awful job of "winning the hearts and minds" of Joe Public because they have not been getting out the victims' stories. But this is not the problem. The problem is the deck is stacked against malpractice lawyers because of the simplicity with which the doctors’ argument can be presented. Jurors can handle nuance because they have taken the time to hear all of the facts of a case. The public, on the other hand, looks first and last to a few high - and, arguably, excessive - verdicts. If you doubt me on this, look at the effect the McDonald's verdict by itself - one incredibly misunderstood case that was easy to present in 10 words or less - has had on the American public.

With this diatribe out of the way, we move to the purpose of this post. In a new article in the Michigan Law Journal, Philip Peters, a professor at the University of Missouri - Columbia, looks at these questions by reviewing the empirical data available on this issue.

I do not have time to summarize the studies because I have already spent too much time on this post, but three important findings from these studies emerged. First, the big question in every medical malpractice case is negligence. If the case is not strong, the malpractice plaintiff almost invariably loses. If the case is strong, with strong being defined as medical experts agreeing it is strong, it is still an uphill battle for medical malpractice plaintiffs. Second, in cases where the Plaintiff does prevail, the jury usually gets it right, with "right" being defined as agreement between the experts and the jury. In fact, juries are more likely to agree with medical experts than medical experts are to agree with each other. Third, the low success rate of medical malpractice plaintiffs' cases even when the experts agree with the plaintiff (8% overall in Maryland) underscores that Joe Public’s inference from those few high verdicts is dead wrong: juries favor medical defendants in the courtroom.

There are a number of possible reasons for this bias in favor of doctors in medical malpractice cases. The most likely explanations are (1) jurors generally trust their own doctors, and (2) the dearth of esteemed doctors willing to stand up and testify against other doctors in the same specialty.

In the end, the medical malpractice tort reform argument honestly distilled is this: it is best for the overall patient’s health to limit medical malpractice awards because doctors will be more honest about mistakes (or related reasoning that goes to overall patient safety) and/or it will lead to less defensive medicine. (Although if you are treating me, I say practice all the defensive medicine you like. I've never fully understood why this is a bad thing.) Even though this might lead to injustice for a few particular plaintiffs who have suffered greatly as the result of the negligence of a doctor, the arguement goes, it serves the greater good. I do not agree with this opinion but at least it is intellectually honest. By guess is that both sides will continue to pander the arguments that are most likely to appeal to the public by applying to the lowest common denominator.

One new bill that came out of Annapolis this year, and is set to become Maryland law on October 1, 2007, is aimed at limiting one of the predatory insurance practices: the “don’t hire a lawyer and I’ll give you a quick settlement” tactic. Among the major auto insurance carriers in Maryland, I do not see GEICO, Allstate, or State Farm doing this aggressively or systematically; Nationwide does it a good bit; and Progressive does it with absolute zeal.

This bill will not limit the practice itself but it will give injury victims not represented by a Maryland lawyer the opportunity to void any release signed within 30 days of an accident within 60 days provided certain conditions are met such as providing written notice and, of course, returning the proceeds.

To Progressive’s credit, it does not appear that they are nearly as aggressive in very serious injury cases, but it amazes me to hear from my personal injury clients the lengths to which Progressive will induce quick settlements in smaller cases. Progressive adjusters show up on the injury victims’ doorstep (apparently every adjuster is smiling and friendly) with a checkbook eager to “make this thing right.”

Most Maryland personal injury lawyers do not want to admit this, but while it is always the safest play to contract an injury lawyer after an accident, smaller injury cases can often be settled without a lawyer. Personal injury lawyers do add value to smaller cases but often it is not much more than the contingency fee the lawyer charges. Because insurance companies generally put a value on the quality and reputation of a plaintiff’s personal injury lawyer, I think our law firm adds value well above our fee in small personal injury accident cases. But do you need to hire our law firm or another lawyer in smaller cases? I think it depends on the case but, often, the answer is no.

I certainly have respect for Progressive as an insurance company. I like almost all of their adjusters and I do not think this “quick settlement” practice is unethical; however, in my opinion, Progressive is the last insurance company I would expect to make a reasonable offer in a “quick fix” situation. If I were to give all of the major insurance carriers in Maryland the exact same case, I would expect Progressive’s offer to be the lowest. It is generally a struggle for accident victims with or without personal injury lawyers to get Progressive to offer fair value without filing a lawsuit.

Early on in the development of the case point no one knows the actual value of the case because the extent of the injuries and the harm from those injuries is still unknown. Accordingly, almost invariably, any early settlement is imprudent. Why do people take a quick settlement then? Because some injury victims are either naïve or they need money fast. Arguably, then, this new Maryland law could go further and make all quick settlements voidable. To what extent should society protect people from themselves? This is a political and philosophical question beyond the scope of the Maryland Personal Injury Lawyer Blog, but I think this law probably strikes the right balance by providing some protection for accident victims while also giving insurance companies some ability to rightfully be able to settle smaller personal injury claims without waiting for an indefinite period of time before they can close the claim.

Jury Verdict Research reports this week that the median jury award over the past 10 years, in personal injury cases involving arthritis injuries, is $38,867.00.

This study involved personal injury verdicts where the victim’s primary injury was inflamed, painful, and/or weak joints or muscles. The study underscored what personal injury lawyers around the country have long known about fibromyalgia cases: juries struggle with them. This is borne out by the numbers - the median jury award of what we would call “pure” arthritis cases is $121,538.00; the median fibromyalgia jury award is approximately $23,000.00.

Insurance adjusters love to ignore Maryland law that provides a recovery for exacerbations of preexisting injuries. To the extent that they acknowledge the law, they bundle all of the injury victim’s problems and drop them on the doorstep of the original injury.

Many personal injury lawyers in Maryland run from taking preexisting injury cases - particularly when the prior injury is serious - because they fear they will be unable to apportion the harm. If there are two or more causes of an injury, and indivisibility is not apparent, a Maryland plaintiff has to show either (1) the harm is not divisible, or (2) the harm was produced by both the preexisting cause and the new cause. Clearly, in some cases this is an impossible hurdle but, in most accident or medical malpractice cases this task is very doable when lawyers take the time and money to get the appropriate medical opinions before accepting or rejecting the case.

I was reading an article in the Washington Post today titled "Juries Showing Change in Large Award Cases." The author, quoting a Washington DC personal injury lawyer, states that "juries have changed in recent years and no longer award the extremely high 'sympathy' verdicts for which they were once known. Juries [the quoted personal injury lawyer said] have become influenced by other factors, including the idea that big judgments came from insurance premiums, which all of us pay."

If you are a personal injury lawyer reading this, you are not surprised because everywhere we go we are hearing about changing juror attitudes. But there is one thing I neglected to mention about the article: it was written on Christmas Day in 1978, over 28 years ago.

I realize that, on some level at least, personal injury lawyers are losing the struggle for the hearts and minds of jurors who are increasingly predisposed to be skeptical of personal injury victims. On the other hand, this kind of talk has always reminded me of the good ole days in the 50s when life was simpler and people were kinder and gentler - the "Happy Days" era. While I'm sure there is a modicum of truth to that notion, there is a lot of fiction to it as well, as anyone black or openly gay can attest. And you can be assured that people in the 50s were talking about how simple and idyllic things were back in the good ole days.

The point is that some of this talk of changing juries is similar to the good ole days talk. This is a good thing for personal injury lawyers to keep in mind before walking in front of a jury because all of this doom and gloom about juror attitudes can be a self-fufilling prophecy.

The District of Columbia Court of Appeals recently upheld a $3.5 million medical malpractice verdict after a 12 day jury trial against a Bethesda, Maryland obstetrician/gynecologist and Sibley Memorial Hospital in Washington, DC. After the verdict against both the doctor and the hospital, Sibley settled with the Plaintiff but the doctor appealed.

The case stemmed from a dilation and curettage (D&C as it is commonly called) during which the OB/GYN inadvertently perforated the Plaintiff's uterus, causing more than three quarts of toxic bowel content to leak into her peritoneal cavity. The leakage caused her internal organs to be "continually bathed," as the court called it, in infectious material, which lead to multiple permanent complications.

On appeal, the doctor contended that the verdict sheet was flawed, that there was improper admission of the hospital's expert testimony, that there was unfair surprise, and that Defendant was entitled to judgment notwithstanding the verdict.

Interestingly, the District of Columbia Court of Appeals found that the verdict sheet was flawed because it did not show which breaches of the standard of care that the jury had found proximately caused Plaintiff's injuries. The trial judgem somewhat understandably, was trying to make what was already a complicated verdict form less complicated by not adding even more questions for proximate cause. However, the court found this was essentially harmless error, because it did not really matter that the jury did not specify which negligent act was a proximate cause because any of the negligent acts could have been the proximate cause (proximate cause and injury was nailed down in other questions to the jury).

This District of Columbia's Court of Appeals' 31 page opinion can be found under Townsend v. Donaldson on the court's website. If you read the case, one of the things you will find interesting is that the hospital and doctor depart from the usual "malpractice defendants stick together at all costs" game plan to the point there the hospital's expert expressly opines that the doctor negligently failed to notify the subsequent treating doctor about issues relevant to the care of the patient.