Maryland Injury Lawyer Blog

I stumbled on a 2003 study titled “ Race Poverty, and American Tort Awards," written by economists Alex Tabarrok of George Mason University in Virginia and Eric Helland of Claremont-McKenna College in California published in the Journal of Legal Studies offering some interesting observations on how race and poverty levels impact tort awards. According to the study’s findings, which used data from successful personal injury cases from 1988-1997, as the poverty rates of minority plaintiffs increase so does their average tort award. It is not a one size fits all trend, however, and there are different levels of change seen among the different minority groups. For example, an increase of just one percentage point in poverty for African-American plaintiff results in a 3 percent increase in jury awards whereas the same increase in poverty percentage yields a 7 percent award increase for a Hispanic plaintiff. Interestingly enough, the exact opposite trend occurs when examining the poverty level of white plaintiffs, whose mean awards decrease with an increase in poverty rate percentage.

Just as the results of the study vary on the race of the plaintiff, the amount awarded fluctuates depending on the type of case in question. An increase in plaintiff poverty rates from 15-20% to over 25% results in an award jumping from $2.5 million to $4 million for product liability cases and from $1.8 million to $4 million for medical malpractice torts. It appears, however, that plaintiffs in auto cases do not reap the same benefits. Not only are their awards consistently lower than those of product liability and medical malpractice cases (which is hardly a surprise), but the awards seem unchanged by fluctuations in poverty level.

There is one final but important caveat to this study. While race and poverty level are important factors in the amount awarded in a successful tort case, they seem to have no bearing on whether plaintiff prevails on liability?

This is the part of the blog post where I analyze what this all means. But I have no idea. Still, it is interesting data.

A few weeks ago, I wrote about a new product for medical malpractice lawyers called MedMal Reports. This company creates a report of the expected medical malpractice payout for a given case, based on the National Practitioner’s Data Bank. I received an email from MedMal Reports Chief Economist, Dr. David M. Frankel, asking if I might tell Maryland Injury Lawyer Blog readers about his new newsletter.

I get a lot of these emails and my first instinct was to press delete. But I took a quick look at the newsletter. If you are into the statistics of personal injury and medical malpractice cases like I am, you are going to love the newsletter. It answers the questions I have always wondered about: whether gender matters (it does not), and what is the optimal age of a plaintiff with respect to settlement/trial value of the case (30-39).

As always, good information is power. This kind of information does two powerful things for medical malpractice lawyers. First, it gives you ammunition to use in settlement negotiations. The majority of good medical malpractice cases settle. The battleground is usually over price, and detailed information that shows the value of your client’s case is helpful. The second thing it gives you is information to inform and educate the client in making the call as to whether they want to take their medical malpractice case to trial or whether to resolve it.

This is the first newsletter MedMal Reports has put out. I get the idea that it will be monthly. As anyone who blogs knows, it is hard to consistently put out useful and informative information. But with the analysis Med Mal Reports has done with the treasure trove of information the National Practitioner’s Data Bank provides, they are certainly armed with the weapons to continue to provide regular information of interest to medical malpractice lawyers on both sides of the v.

You can find their November newsletter here.

The West Virginia Supreme Court, applying West Virginia’s medical malpractice cap, affirmed the trial court’s decision to cut a $10 million medical malpractice verdict against a West Virginia hospital and one of its doctors down to $1 million.

Plaintiff’s lawyers contended that the non-economic damages cap in medical malpractice cases in West Virginia did not apply to the jury’s verdict because their claim against the hospital did not arise out of the care and treatment of the Plaintiff but instead because of the hospital’s failure to control an environmental serratia outbreak which the jury found caused Plaintiff to contract a nearly fatal infection during an otherwise routine anterior cruciate ligament (“ACL”) surgical reconstruction in 1995.

Relying on judicial estoppel, the West Virginia Supreme Court disagreed in a tight 3-2 decision. The court found that Plaintiff pursued the case as a medical malpractice case in the pleadings, in their requested jury instructions, the agreed upon verdict sheet, and in Plaintiff’s closing argument.

Of those four, I think the verdict sheet is the most compelling. The verdict sheet read: “Do you find by a preponderance of the evidence that West Virginia University Hospitals, Inc., was negligent in its care and treatment of the Plaintiff by failing to maintain a safe and proper hospital environment with respect to infection control?”

Like most personal injury attorneys, I dislike medical malpractice or any other caps on non-economic damages. But I also believe in applying the law and suspect that this was the right decision.

I say "suspect" because two judges did dissent but neither have issued an opinion. There still may be a dissenting opinion; in West Virginia, they put out the majority opinion when it is ready even if the dissenting opinion has not yet been drafted. I will be interested in seeing specifically why those judges dissented.

Politically, you also have to figure that all things being equal, the West Virginia Supreme Court would rather not have a ten million dollar judgment against the state's premier hospital. Moreover, even I will admit that the verdict seems high given that there was no mention of any permanent injury. I'm not mimimizing what appears to be an awful case that almost killed a 15 year-old girl. I'm just not sure if the damages should be eight figures. The Plaintiff's medical malpractice lawyers likely did not expect a $10 million verdict because they were clearly couching the case as a medical malpractice case, fully aware of the cap, when they really did not have to do so.

Of course, the preceding paragraph does exactly what I always complain about when others do it: second guessing a jury's verdict when they sat through the entire trial and were in the best position to make the call as to the appropriate damage award. But on the limited information I have, and assumptions I am making because the Plaintiff's medical malpractice lawyers set up the case as a medical malpractice case (knowing about the cap on non-economic damages and the lack of facts regarding permanency) and my own limited knowledge of serratia bacteria infection secondary to surgery, a $10 million verdict seems awfully high.

You can click on the link for the West Virginia Supreme Court Opinion.

Our law firm is looking to add another personal injury lawyer to our growing team in Anne Arundel County. Prior personal injury experience or insurance defense experience for 2-5 years is required (absent something very compelling). Significant benefits package available and salary commensurate with experience. Please fax your resume and salary requirements to 410-760-8922 or e-mail Laura G. Zois laurazois@millerandzois.com.

When writing about the Medtronic lead recall last month, we wrote that the St. Jude Medical Riata defibrillator leads might also be suspect, noting that either St. Jude similar leads were technologically superior or that data had not caught up to the problem because St. Jude has less market share than Medtronic. Both the Medtronic Sprint lead and the St. Jude Riata lead are smaller than other defibrillator leads. Certainly, they are easier for cardiac surgeons who are threading the defibrillator leads through the patient’s blood vessels than the Quattro lead or other available leads. The question is whether these newer and thinner defibrillator leads are safe. The Medtronic lead recall and the reports we are getting from clients all over the country make clear that the Medtronic Sprint lead is defective.

Now, the question is whether the St. Jude Riata lead is similarly flawed. According to a Wall Street Journal article last week, reports are emerging that some St. Jude defibrillator wires may be defective. As opposed to staying attached to the heart where they belong, there are reports that the St. Jude leads are puncturing holes in the hearts of defibrillator patients. The punctures are not insignificant; some reportedly are nearly poking through the patients’ skin.

If the lead is not attached to the heart, it creates the same (failure to shock the heart) concerns we now have with the Medtronic Sprint leads. Even more problematic, the detached wires can cause the heart to bleed, creating a potentially life-threatening condition.

There is no question that in rare cases this can happen to any defibrillator lead. St. Jude claims that there is no evidence that Riata leads are more likely to perforate the heart than any other defibrillator leads.

But the medical community is not so sure. The medical journal Pace reported last week on four women with perforations from St. Jude Riata defibrillator leads. The patients (from Nebraska, New York, and the Czech Republic) all had their defibrillator leads removed. Cardiologist Dr. Stephen C. Vlay wrote that if the leads perforate, the problem is often not uncovered until the lead goes through the heart wall.

Continue reading "St. Jude Defibrillator Leads: Is Another Recall on the Way?" »

Metro Verdicts Monthly's graph in this month’s issue is median settlements and verdicts in cervical (neck) herniated disc cases in Maryland, Washington, D.C., and Virginia. The median cervical herniated disc case in Maryland is $40,000. The Washington D.C. and Virginia medians are $50,000 and $36,000, respectively.

I always qualify providing this data with a “for what it is worth.” In the case of cervical herniated disc injuries, it is a “for what it is worth” squared. If a person says they are an actor, there are a lot of different degrees of being an actor. She may be Meryl Streep or her signature role may be “Crazed Killer #12” in a 5 second cameo appearance in a B movie. Herniated disc injuries are the same thing. Some people are walking around with cervical herniated discs that they cannot feel; for other, their lives are virtually destroyed by the injury.

The other problem is I do not think plaintiffs’ personal injury lawyers properly value herniated disc injuries and, consistent with my post on Monday, lawyers settle these cases too quickly. This is particularly true with cervical herniated disc cases as opposed to lumbar (back) disc injuries, because some herniated disc injuries are relatively benign. But the fact that there are some smaller herniated disc cases should not alter the value of the serious injury cervical herniated disc injuries.

Doctors may have a new opponent in their battle for lower medical malpractice premiums: the state of Maryland. As I wrote last month, Maryland has been paying subsidies to doctors to the tune of $80 million over the past three years as a part of the medical malpractice “reform” bill that was passed in 2004. The Baltimore Sun reports today that Maryland Insurance Commissioner Ralph S. Tyler ruled that a $68.6 million malpractice premium surplus, which Medical Mutual had accrued last year, is owed to the state of Maryland.

Back in 2004, doctors’ fervor for caps in medical malpractice cases reached a new high. To fan the flames, I’m convinced that Medical Mutual (easily the largest medical malpractice insurer in Maryland, covering about 75% of Maryland doctors) engaged in a little creative accounting and timely settlement negotiations that allowed Medical Mutual to pay out more during the time frame being examined by the Maryland legislature. The Maryland legislature was looking at this time frame to determine how much medical malpractice premiums had risen.

After they got their wish and the Maryland legislature passed a bill to further cap medical malpractice damages, it quickly became apparent that the rise in premiums was artificial, evidenced by this $68.6 million surplus. For most insurance companies, this means that they have a $68.6 million profit. But Medical Mutual is owned by its own policyholders, the doctors Medical Mutual covers. So this profit would have gone back to the doctors had the state of Maryland not intervened.

In the end, I don’t know what this really means. Commissioner Tyler’s ruling apparently left open an escape hatch, stating that “I have left the door open for Medial Mutual to rescind its dividend declaration and propose a solution to mitigate rates next year.” In other words, Maryland may allow Medical Mutual to keep the money as long as it pays it doctors back in decreased premiums as opposed to a cash payment. This solution might be the best play for everyone, including Maryland medical malpractice lawyers, because stable premiums might strengthen our case for removing the medical malpractice non-economic damages cap. The truth is the only real loser would be Maryland taxpayers who are facing tax hikes next year and want their $80 million back.

I had a jury trial in an auto accident case in Anne Arundel County against State Farm last week. It was a soft tissue injury case with over a year of treatment. It was a case we inherited from another lawyer who retired last year.

The biggest weakness of the Plaintiff's case is that he had few doctor visits before complaining of the soft tissue injury upon which the claim was based. The Defendant's biggest weakness was their liability defense never actually made any sense. The Defendant was, however, very old and very sympathetic. Because the jury is never told insurance is going to pay the claim, you have to expect this to be a factor in the amount of the recovery even if they do suspect there is insurance behind the Defendant.

The jury found for the plaintiff, but awarded only a little over $16,000. State Farm was thrilled, and I was depressed for a few days. They won and I lost. That is how we both saw it and marked our scorecards accordingly. But here's the thing: State Farm only offered $5,000 on the case. It underscores how unreasonable State Farm's offers can sometimes be when it views a jury award of over three times their offer to be a success.

I shouldn't single out State Farm. We have "lost" a lot of trials were the verdict was a great deal higher than the last settlement offer, particularly in smaller cases in difficult venues. (If you are not a Maryland personal injury lawyer, Anne Arundel County is a relatively affluent county whose juries are considered conservative, particularly in cases that involve subjective complaints of pain without any positive diagnostic findings.)

A part of the reason why insurance companies don't feel compelled to make fair offers is because too many personal injury lawyers do not want to try the case - they take the settlement offer. If more personal injury lawyers held the insurance companies' feet in the fire and made them try cases where the offers are unreasonable, we would have many fewer unreasonable offers. Of course, we settle a lot of cases where the offers are unreasonable, because the client does not want to go to trial. But I think too many lawyers convince their clients to settle personal injury cases that really should be tried.

Our lawyers receive calls every day asking about what a Medtronic class action lawsuit means to them. The Medtronic class action will be in the form of a multidistrict litigation (“MDL”). Pursuant to 1968 law, an MDL is a procedural mechanism that will pull all of the Medtronic lead recall cases in federal court together in a single action for consolidated pretrial handling. Under this law, a seven judge-panel appointed by the Chief Justice of the Supreme Court has the authority to consolidate the Medtronic cases and select a MDL judge to oversee the Medtronic class action.

In an MDL, there is not a single trial that resolves all of the cases. An MDL only pertains to pretrial discovery matters. After discovery has been conducted of the key witnesses and all of the relevant documents have been obtained, the Medtronic cases will be returned to the original court in which they were filed.

This actually makes sense both for Medtronic and for Medtronic defibrillator lead recall plaintiffs because it does not makes sense for anyone to have to depose the same witnesses over and over again if the same witnesses are people of interest in all of the Medtronic leadcases. For example, the person who made the decision to put the Medtronic leads on the market is going to be a relevant witness in every single case. In the Medtronic MDL, they will conduct what is called a trial deposition (or de bene esse deposition), in which the witness gives testimony by videotape which has the same effect as if the witness were to testify live a trial.

If you are a Medtronic plaintiff who would prefer to settle your case as opposed to going to trial, the MDL is a good vehicle to settlement. While an MDL is technically just for pretrial proceedings, functionally, if history is any guide, it will be the end point for the overwhelming majority of Medtronic cases. Big companies like Medtronic are driven by stock prices and financial reporting requirements. Investors typically want to limit a risk, which means resolving large cases through settlement. So an MDL class action creates an incentive to Medtronic to access the risk and what the value of the Medtronic lead recall cases really is which usually helps induce a reasonable settlement.

Continue reading "Medtronic Class Action: What Does a Class Action Mean to Medtronic Defibrillator Lead Recall Victims?" »

A few months ago, I wrote about an upcoming review in Cook County on the constitutionality of medical malpractice caps. Yesterday, an Illinois trial judge found medical malpractice caps are unconstitutional, reversing a 2005 law capping damages in medical malpractice cases. The trial judge found that a cap on medical malpractice damages violates Illinois Constitution's separation of powers between the legislature and judiciary.

The battle is far from over - this is a trial judge making the call. But it is still good news for medical malpractice victims in Illinois.

A Washington jury awarded $15.5M last week in a 2004 truck accident case. The injuries, as the verdict suggests, were catastrophic. The Plaintiff was blinded in the auto accident. She continues to undergo surgical procedures to reconstruct her facial structure and is still in therapy to aid in her recovery from the brain injuries she suffered.

Given the catastrophic nature of these injuries, the amount of the award is no surprise; however, the party held primarily responsible for her injuries is: U-Haul International, Inc. The jurors, apportioning liability as they do in a comparative negligence jurisdiction, found that U-Haul was 67% at-fault for Plaintiff’s injuries while the operator of the U-Haul trailer was found to be only 33% to blame. The jurors also found U-Haul Company of Washington and the owner of the Texaco station where Mr. Hefley rented the trailer to be negligent.

The jury found that the operator had failed to properly secure materials in the U-Haul trailer he rented and as a result, a large piece of wooden furniture flew out of the trailer and smashed through plaintiff’s windshield on the driver’s side. The jury found that the lack of instruction and clear warning to customers on how to properly secure materials they were transporting made U-Haul more at fault for the accident then Mr. Hefley’s failure to ensure the stability of the furniture he was transporting.

In their attempt to push responsibility for the accident to the Plaintiff, U-Haul’s lawyers apparently argued that Plaintiff was following too closely behind the U-Haul trailer and was drunk at the time of the accident. These efforts to shift blame back to a woman who suffered these kinds of catastrophic injuries not surprisingly backfired.

This accident has lead to the creation of “Maria’s Law” in Washington which will hold future motorists to a higher threshold of accountability when accidents occur as a result of their failure to properly secure items in and around their vehicles.

Most of us on the roads are constantly dodging carpets, boxes, and contruction equipment that made our roads sometimes look like Aisle #11 at Home Depot. Federal law requires truck operators to secure their loads but these laws are not always enforced.

Often, the failure to secure load cases are far less obvious. Plaintiff auto and truck accident lawyers are getting wiser to the notion that the parties loading, unloading, and providing instructions for loading and unloading are often culpable defendants in cases where these issue are far more subtle than in this Washington case. It is the truck driver's responsibility and the loader's responsibility to secure the load as prescribed by the U.S. Department of Transportation and Federal Motor Carrier Safety Administration. Our lawyers have handled a number of these cases and are familiar with the trucking experts, mostly engineers, around the country who specialize in making sure vehicles are safely loaded. If you are a truck accident lawyer looking for experts in this regard, feel free to give me a call or drop me an email.

Merck is being lauded for its strategy of aggressively fighting virtually every injury claim. In spite of a $4.85 billion settlement that may only settle only 85% of open claims, Merck is getting pats on the back from Wall Street and kudos for its Churchillian cry to wage war. The question is will Medtronic follow suit in the defibrillator lead class action lawsuit?

If this is the course Medtronic takes, I suspect they will find themselves in the same category as many asbestos manufacturers who took the same path: financial ruin.

Why, then, was Merck arguably successful? Setting aside the insanity of calling a $4.85 billion settlement a success, Merck has been successful at trial because these cases are tough. Heart attacks and strokes with patients on Vioxx are what epidemiologists call confounding by indication, which means that people taking Vioxx, because of their typically more advanced age, are people also at risk for heart attacks independent of the Vioxx. Moreover, the injury itself is the leading cause of death in this country.

While there no question that Merck dropped the ball on patient safety with Vioxx, the question was always whether Vioxx caused the heart attack or stroke with the particular patient. This is the problem for Vioxx plaintiffs. Trust me, if a lawyer has a 25 year-old otherwise healthy client who took Vioxx, that lawyer is not going to be recommending that client join the class action settlement and that case is going to be worth a great deal of money. The problem was that most of the Vioxx plaintiffs were much older people at high risk for heart disease with or without Vioxx.

Causation is going to be much easier in the Medtronic cases for a host of reasons. First, everyone with these leads is injured, at least in the sense of fear that their Medtronic defibrillator will fail because the leads fail to detect an abnormal rhythm or because the leads shock the heart when they shouldn’t. If you have one of these Medtronic defective leads in your chest, you obviously know what I’m talking about. If you do not, think about it for a second. You made the choice to get a defibrillator which shows how concerned you were about abnormal heart rhythms. That is a serious choice to make. Now, for many patients, these wires are imbedded into their tissues with no meaningful way to recall them. How would you feel knowing you have a defibrillator that has wires that may fail to shock your heart when your heart falls out of rhythm or might shock your heart when you do not need a shock? Every juror hearing a Medtronic case is going to appreciate this harm.

Secondly, the liability is virtually established by Medtronic’s own statements about the failure of the leads. When all is said and done, the issue in these cases is going to be one of damages, not liability. In cases like these, Medtronic lawyers are going to have to have a lot more resolve to continue fighting than in the Vioxx cases where it appears that every individual case is an uphill battle.

Continue reading "Medtronic Class Action Lawsuit: Will Medtronic Follow the “Merck Model”" »

I have expressed my disdain for Maryland’s cap on non-economic damages many times on the Maryland Personal Injury Lawyer Blog. I read an interesting article in the University of Baltimore Law Forum on an issue to which I have never given much consideration: the impact of the cap on non-economic damages on women. In the article, Maryland Tort Damages: A Form of Sex-Based Discrimination 37 U. Balt. L.F. 97 (2007), University of Baltimore law professor Rebecca Korzec argues that the statutory cap on non-economic damages in Maryland, although facially neutral, has the unintended consequence that it disproportionately disadvantages women.

The essential premise is that limiting non-economic damages disproportionately affects female litigants, because women earn less, in large measure due to women spending more time on unpaid child care and taking care of the children and the house. Accordingly, limiting pain and suffering damages does not allow juries to award fair compensation. Non-economic damage caps solidify bias by rewarding economic losses over non-economic ones, intensifying the gender bias of tort law.

Moreover, Professor Korzec notes that physical injuries to women may not result in significant damages awards, because of the nature of some injuries that are specific to women. A "soccer mom" who suffers an injury requiring a hysterectomy, for example, may result in little economic harm. Accordingly, restricting or limiting her non-economic damages may result in an insignificant award of damages.

In my mind, this is one more intellectual dagger into an idea that is not logically defensible. Now it appears that non-economic damage caps are not only discriminatory towards people who are the most seriously injured, it is also discriminatory to women. Although I do not have a lot of hope, the Maryland legislature should really hold hearings on the efficacy of the cap and its impact on a small minority of injury victims that need the system’s protection more than anyone.

(I found this article in the adjunct facility office at the University of Baltimore Law School after teaching my class. I looked on-line at the University of Baltimore Law Forum’s website, but it is not yet available.)
Related Posts

My partner, Laura Zois, and I both received emails last week from people who pointed out that defense lawyers are using the Maryland Personal Injury Lawyer Help Center, specifically some defendants’ motions that are on the site to put the sample plaintiffs’ motions in context. One lawyer expressed a great deal of surprise that this information is provided at no cost.

We do not mind that an unintended byproduct of the Maryland Personal Injury Lawyer Help Center is better educated, better armed defense lawyers. In the big picture, efficiency and justice in personal injury cases are best served when both sides are well prepared. In the information age, there are many resources available to become a better personal injury lawyer and better advocate for our clients. One of the great things about the Maryland Personal Injury Lawyer Help Center is that it is a free resource anyone can use.

Over the next month I’m going to be adding more materials. If anyone has a sample motion, deposition, pleading, or something you think would be of use to the Maryland Personal Injury Lawyer Help Center, send it to me at ronmiller@millerandzois.com. If I think it would be of help, I will post it. If you send the document in Word format, I’ll include a link back to your website, provided you have one and would like me to do so.

We received today a letter from one of our clients that she received from Medtronics.

Our attorneys are representing patients with these Medtronic defibrillators with defective leads not only in Maryland but around the country. You can find more information about the Medtronics Lead Recall below:

Questions and Answers About Medtronics Lead Recall (frequently asked client questions)

More News and Information on the Medtronics Lead Recall (class action information)

Medtronics Defibrillator Lead Recall Lawyer Analysis (discussion of what happened)

Congress Responds to the Medtronics Recall (details of congressional inquiry of Medtronics leads)

Medtronic's Response to the Defibrillator Lead Problem (what did Medtronic know and when did it know it?)

Medtronics Letter to Patients with Recalled Lead (received from one of our lead recall clients)

Commentary on How FDA Failed Medtronics Defibrillator Patients (discussion of flawed system)

Information for Lawyers Seeking to Refer Medtronics Cases to Our Law Firm (information about our firm for attorneys referring Medtronics lead recall cases)

Will Medtronic Follow the "Vioxx Plan" in the Medtronic Defibrillator Lead Lawsuits?

Contact Us (call 800-553-8082 or contact us by email for class action information).

Bayer AG is talking its anti-bleeding drug Trasyol off the market following the release of a Canadian study that found it appears to be linked to higher risk of death than other drugs. The FDA asked Bayer to stop selling Trasylol pending further review of the Canadian study. The FDA approved Trasylol in 1993 and had previously recommended that Trasylol remain on the market despite studies linking it to various health problems.

The safety of Trasylol has been debated since a study published in January 2006 linked the Trasylol to kidney damage, heart attacks and strokes. One of those studies previously was withheld by Bayer from the FDA due which Bayer attributed to a "regrettable human error."

Trasylol is used to stop bleeding during heart bypass surgery by blocking enzymes that dissolve blood clots. The drug, which appears to be efficacious it is purpose, is designed to stop or slow blood loss, enabling patients receiving heart bypass surgery to avoid transfusions. Unfortunately, the risk of kidney damage, heart attacks and strokes appears to outweigh the salutary benefits Trasylol may have.

For the plaintiffs’ Trasylol lawyer representing the victims, the difficulty is going to be determining whether a heart bypass patient received Trasylol. Most bypass patients do not know the specific drugs given to them during surgery. So it most cases, your Trasylol lawyer will need to request the necessary medical records to determine if Trasylol was used.

If you have had a heart attack or a stroke after heart bypass surgery or if you have any questions, call our Trasylol lawyers at 1-800-553-8082 or click here for a free Internet consultation.