Maryland Injury Lawyer Blog

One notable absence from the Maryland Personal Injury Lawyer Help Center has been a sample demand letter, an omission I rectified today. One of my goals in 2008 is to make the Help Center a more complete resource for personal injury lawyers. Most of what we have added in the last year has been by request, so if there is something you want to see, drop me an email and we will put it up. If you have something you want to add to the Maryland Personal Injury Lawyer Help Center, send it to me, and if we think it will be helpful, we will put it up.

(Since I wrote this post last week, I've gotten a number of requests for more demand letters in cases that are not motor vehicle torts. Yesterday, I added second sample demand letter in an products' liability and legal malpractice case.)

In March, I wrote a blog post discussing whether it makes sense for personal injury lawyers to videotape medical exams by the defendant's lawyer's doctor. Last week, the Oklahoma Supreme Court ruled that a plaintiff who is required to submit to an "independent medical examination" (hereinafter the more honest "defense medical exam") may videotape the exam.

In this case, the doctor had refused a plaintiff’s request to videotape the DME because (1) it would invade the privacy of others in the office; (2) it would be “annoying and distracting” to the DME doctor and his staff; and (3) it would interfere with the doctor’s examination.

Actually, these are not the doctor’s objections. These are the defense lawyer’s objections. The doctor was more than happy to allow the DME to be recorded as long as the defendant’s lawyer did not object. Moreover, all of these objections are silly. First, obviously the video should only be permitted to videotape the doctor’s examination of the plaintiff. Second, for $500 an hour, or whatever the doctor is charging, he should be able to bear a little annoyance and distraction. Finally, there is no reason to believe that videotaping at the DME would interfere with the examination.

The Oklahoma Supreme Court followed the wisdom of courts in Kentucky and Indiana, which permitted audio recording of DMEs, and found no reason why the logic did not extend to videotaping an exam.

What I learned from reading this opinion is a little more on the history of compelled medical exams. In the nineteenth century, the U.S. Supreme Court in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 (1891) affirmed the longstanding common law that compelled medical examinations in personal injury cases were “repugnant to a person's privacy and bodily integrity.” Obviously, that view has changed over time. I agree that the more modern view is the appropriate view because if a personal injury plaintiff puts their health at issue, it is fair game for the defendant to be able to have the ability to evaluate those injuries in the adversarial system. But it underscores that medical exams are not a right to which plaintiffs must blithely acquiesce without fair conditions and limitations.

Again, as I wrote back in March, while I think it should be permissible to videotape a DME, I question whether personal injury lawyers want to go down this path. While I would love to have a library of tapes of a given doctor’s DMEs, the potential harm might outweigh the benefits. I think it would force DME doctors to do more complete examinations than what is often an assembly line examination. Moreover, I think the DME doctor would likely maintain a nice guy persona during the examination. A part of the argument for videotaping is that with a videotape, the jury can see what a jerk the doctor really is. But how many doctors are going to come off poorly when they know they are being videotaped? An even graver concern is that you have not fully prepared your witness for trial testimony at the time of the DME, leaving him/her vulnerable to making poor judgments during the examination, such as overstating the scope of the injuries, or acting defensively or inappropriately with the doctor, who is more likely to be mindful of the impact of the videotape.

I'm working on finishing a new book I am writing for James Publishing on maximizing the value of personal injury cases that should be out in early spring. I'm sure I'll be plugging my book like crazy at the appropriate time but, for now, I offer it as an excuse for the blogging hiatus that some of you have noted. But expect another post or two next week and then we will be back in full swing after the New Year!

Merry Christmas to all!

On Monday, the Supreme Judicial Court of Massachusetts overturned the dismissal of a lawsuit filed by a woman against a physician who had failed to warn his patient of the side effects of a medication. These side effects had caused the patient to lose consciousness at the wheel and kill the woman’s 10 year-old pedestrian son. The driver had recently had treatment for cancer and had been told by his doctor that he could safely resume driving while on his medication. (He had stopped driving for a period of time.) The mother sued, alleging that the doctor failed to warn his patient, the driver, of the possible side effects of drowsiness, dizziness, and altered consciousness.

The lower court had dismissed the lawsuit, claiming that the physician had a duty to his patient only, not to third parties. The Supreme Judicial Court disagreed and found that the doctor's duty extended to anyone who could be harmed by his failure to warn his patient about the drug's side effects. This ruling greatly widens the scope of duty of physicians when choosing treatment options for their patients and perhaps necessitates a wider discussion of possible side effects when prescribing medications. The case will now return to the lower court and be tried on the issue of the doctor's negligence (the dismissal was on the basis of standing to bring the lawsuit in the first place).

This is a very sad case. The driver was 75 years old and suffered from lung cancer, chronic bronchitis, high blood pressure and emphysema. At the time of the crash, he had finished his cancer treatment but was still on many medications. He died of cancer shortly after the accident. A ten-year old boy lost his life when he was in the wrong place at the wrong time. It does not get much more awful than that.

Obviously, if the duty of care a doctor has to his patient is widened to include third parties, it will be seemingly impossible to imagine the number of persons, like the ten-year old boy, who will fall into this scope. Will doctors in this doctor's position now have to tell their patients not to drive at all for fear of harm being caused to some third parties if any of the side effects arise and an accident ensues? Or will it be enough just to inform them of the side effects? I don't know but I think it is a question for the jury.

It will be interesting to see what the Massachusetts legislature does with this issue, because the legislature, as it has been prone to do, can pass laws limiting physicians' liability. I hope they don't. The politics of limiting the liability of doctors for medical malpractice cases notwithstanding, the court's rule in this case is consistent with the more modern view of ignoring privity and focusing on allowing actions in negligence by individuals or groups within a foreseeable zone of danger of the negligence. Clearly, in this case, this ten year-old boy was a foreseeable victim of the doctor's alleged negligence.

A quick search for a Maryland case on point came up empty, but this holding is consistent with the Florida Supreme Court's ruling in Pate v. Threlkel, 661 So. 2d 278, 278 (Fla. 1995), which found that "when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician's duty runs to those third parties." Id. at 1168.

Many plaintiffs’ personal injury lawyers are complaining that State Farm’s profit surged to $5.6 billion in 2006 — up 75% from $3.2 billion in 2005. State Farm’s CEO, Ed Rust, Jr., received a $5.26 million dollar pay raise last year and is now earning $11.66 million. Implicit in this complaint is the idea that State Farm’s lowball offers and hardball tactics are the reason why their profits are so high and their CEO is overpaid. I think these complaints are misplaced for a lot of reasons.

First, General Motors took a $39 million loss last quarter. While this statement is misleading as well, it underscores the obvious: big companies can have large profits and large losses. A number like $5.6 billion in a vacuum means nothing, particularly for a huge company like State Farm. If you think the insurance companies make too much in profit, put your savings in a company like Allstate, which is publicly traded. But be careful: Allstate, for example, has underperformed the market in the last ten years. Insurance companies are hardly the Google of the stock market and I really don't think there is any evidence that their profits are historically excessive. (Please, correct me if I'm wrong.)

Second, with respect State Farm’s CEO’s salary, State Farm is a Fortune 100 company. If high CEO salaries are a problem (and I don’t think they are for reasons that are not worth getting into here), it is not specific to the insurance companies. Big company CEOs are making a ton of money in every business.

Finally, and I think most importantly, I think it is misplaced to expend energy complaining about low ball offers. Setting aside first party obligations where the paradigm is a little more complex, insurance companies should be trying to do whatever they ethically can to decrease payouts. It is our job as personal injury lawyers to do the opposite. We are not shooting for fair offers, we are trying to get as much as we possibly can for our clients. They call us greedy personal injury lawyers and we call the insurance companies, like State Farm, cheapskates. But maybe this is not the worst thing in the world. We have an adversarial system that has been in place for a few hundred years and I think it works. To the extent that it does not, it is clearly not a perfect system. It is just the best system.

State Farm and their brethren are going to play tough. That’s okay. If personal injury lawyers hold up their end of the bargain and fight back, the system will work just fine.

Today, the Supreme Court will hear argument in Riegel v. Medtronic Inc. The issue is whether the Food, Drug and Cosmetic Act forecloses state law personal injury lawsuits for injuries from the design, manufacture and labeling of a Medtronic medical device that was granted pre-market approval by the Food and Drug Administration. This case is a product defect case involving a Medtronic balloon catheter that killed the patient but, this case could have ramifications for the Medtronic lead recall lawsuits that are being filed all over the country. While technically this case focuses on a specific statutory provision, no one would be surprised if the Supreme Court’s holding provides a comprehensive framework for preemption that would apply to all drug and medical device cases.

Naturally, the Bush administration has lined up squarely behind the pharmaceutical companies. This is ironic because there is a strong presumption against preemption, particularly in cases where the issue involves the individual states’ power to protect public safety and health. The Supreme Court has consistently found that preemption of state law does not apply unless “the nature of the regulated subject matter permits no other conclusion” or “the Congress has unmistakably so ordained.” Chicago & N.W.Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317(1981) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963)).

Preemption limits the states’ ability to protect its own citizens. The requirement that express preemption provisions be unambiguous follows this administration’s line of thinking: the states should be allowed to decide what is best for its citizens whenever possible, accordingly we should err on the side of states’ rights unless the preemption provisions are crystal clear. Yet, in this case, this administration supports usurping the states’ power even when it is clear that there is no express legislative intent for preemption.

The Bush administration is a big proponent of states rights. The President clearly believes that if the state of Kentucky finds that all of its citizens should be permitted to walk into shopping malls with AK-47s, it is all good and the federal government should just stay out of it. Yet all of this high minded capital “F” Founding Fathers and Federalism gets trumped because pharmaceutical and medical device companies do not want to be held accountable for their own negligence. The lesson, as always, is that protecting big business prevails over all, even at the expense of deeply held core values.

I read this weekend an absolutely crazy story about a Tennessee medical malpractice case. A Tennessee lawyer was sued for legal malpractice for botching a medical malpractice case which he supposedly should have won. The legal malpractice case settled for $750,000 which means, if logic and reason were at all involved in the settlement process, it was a meaningful case with real value. Incredibly, he was also successfully sued for bringing a groundless lawsuit – the same case he should have won. There can be only once cogent response to these facts: huh?

Here is what happened. Underlying plaintiff has back surgery which left him blind in one eye and without peripheral vision in the other, rendering him legally blind and unable to work. Obviously, this was an awful outcome. Plaintiff brings a medical malpractice claim against the doctor, claiming that incompatible blood control products were used together during the surgery and caused Plaintiff’s injuries.

Plaintiff’s lawyer apparently starts screwing things up from there. The lawyer failed to find a medical expert that supported the claim before filing the suit, although there is a requirement in Tennessee that he do so. Ultimately he never did obtain an expert. In the legal malpractice suit, Plaintiff contended that incompatible medications did not cause his injuries. Instead, he and his experts claimed that the real cause of his injuries was the misplacement of his head during his seven hour surgery. The legal malpractice claim was settled, again for a substantial amount of money.

Of course, in the legal malpractice case, the lawyer being sued steps into the shoes of the doctor being sued in the medical malpractice case as a defendant for the “case within the case.” So someone was willing to write a pretty big check under the assumption that the doctor had committed medical malpractice, but the doctor’s medical malpractice insurance rates do not go up and he gets off scot-free.

Continue reading "Can a Medical Malpractice Case that Settles for $750,000 Be Frivolous?" »

The Medtronic recall and the concern being expressed about the St. Jude Riata leads has left patients in fear that they have defective defibrillator lead wires in their chest that cannot be removed. Both Medtronic and the FDA have suggested that for most patients, removing the leads is not the best option because of the risks associated with the removal.

The good news, according to a recent article in Medical Device Week, is that medical technology is moving towards a safe and effective way to remove leads if they become damaged or dangerous to the patient.

Leads can become hazardous for any number of reasons, whether it is a question of faulty manufacturing like the defective Medtronic leads, or because they become infected or blocked over time. In the 1980s, most implantable leads were removed by mechanical sheaths. However, they were eventually replaced by power sheaths which were in turn abandoned for the newer laser sheaths. Cook Medical in Bloomington, Indiana has taken a more traditional approach in creating Evolution, their new tool for defibrillator lead removal and throwback to the mechanical sheaths of the ‘80s.

According to Cook Medical, the new Evolution mechanical dilator sheath boasts improvements over the traditional mechanical sheaths and has none of the drawbacks which plague the power and laser sheaths of today. The design of the original mechanical sheaths caused them to be somewhat awkward and require a large degree of physicality to operate. The new Evolution design has eliminated this concern. They are not as bulky or as costly as the current electronic sheaths, and they are able to avoid the unintentional damage to surrounding tissue sometimes caused by their electronic counterparts. The mechanical Evolution does not require the additional capital equipment, annual maintenance and calibration, biomedical inspection, electricity source, or on-site laser officer necessitated by a laser sheath. Reportedly, the mechanical sheath also maximizes physician control.

Continue reading "Medtronic Lead Recall: Possible Good News for Medtronic Defibrillator Patients with Defective Leads" »