Maryland Injury Lawyer Blog

On Wednesday, a Baltimore City jury awarded a 78-year-old Owings Mills woman $2 million in a medical malpractice case stemming from a failed surgery that led to three successive leg amputations.

After the verdict, Defendant’s medical malpractice lawyer gave this quote to the Maryland Daily Record: “This reaffirms my long held view that it is extremely difficult for a physician to get a fair trial in Baltimore City, particularly where there is a bad outcome and a sympathetic Plaintiff.”

If I were the reporter, I would have asked a few follow-up questions. Do you think that the people of Baltimore are not as smart and more prone to emotion then, let’s say, a Baltimore County jury? Why do you think this is? Is it just medical malpractice cases we cannot trust them with or all cases? What should we do about this problem with Baltimore City jurors? Should we replace Baltimore City jurors with the right kind of people, like the good folks in, let’s say, Potomac. If Baltimore City jurors can’t be fair on juries, should we continue to trust them to vote?

Congratulations to the malpractice victim and her lawyers Charles J. Piven of Brower Piven in Baltimore and Barry J. Diamond.

The New York Times yesterday reported that the FDA has announced that the oversulfated chondroitin sulfate contaminant found in Chinese-made heparin, which has officially been linked to 81 deaths and will soon be linked to a lot more, has also been found in drug supplies in Australia, Canada, China, Denmark, France, Germany, Italy, Japan, the Netherlands, New Zealand and, of course, the United States. Somewhat incredibly, the Chinese maintain that the contaminant is not responsible for the deaths caused by allergic reaction to heparin.

The Times also reported that a GAO report found that the FDA will need an additional $56 million next year to conduct inspections of foreign manufacturing facilities of pharmaceutical drugs. This is incredibly convenient for the FDA because it creates the appearance that the problem was they did not have enough money to inspect the plants. But the failure to inspect the Chinese plant stemmed from the fact that they confused the names of the plants and thought that plant had already been inspected, not a lack of resources to inspect the plant in the first place. Classic pass the buck.

The FDA is also suggesting that had they inspected the plant they still would not have uncovered the contaminant. Maybe that is so, I really don’t know, but don’t you think that had the FDA rolled in, someone in that Chinese heparin manufacturing plant might have said, “Gee, maybe we should take the oversulfated chondroitin sulfate out of the heparin.”

In the end, however, Baxter is the one responsible for a safe heparin product. What was Baxter doing to test heparin to verify its safety? As I have written time and time again, there is nothing inherently wrong with making our pharmaceutical drugs and medical devices in China because it does lead to lower prices at home. But, be it China or Kathmandu, if you are going to go further away from your product you have to put systems in place to make sure the product is being safely manufactured, particularly if it is a life saving product for vulnerable patients, like heparin.

In other news, the Maryland Daily Record reports today that American Capital Strategies Ltd., which has as a 90% interest in one of the companies involved in the chain of distribution, is a Maryland-based company. This is interesting, but I don’t think their ownership interest will pierce the corporate veil and Baxter is the deep pocket with ultimate responsibility for the safety of their heparin product. I am quoted a few times in the article about the heparin class action litigation. (I would provide the link to the article but the Daily Record takes down the article after a day or so. But, if you go to the Maryland Daily Record website today, you will be able to find it.)

Four passengers have filed a lawsuit in Alabama against Southwest Airlines, alleging breach of contract, negligent and reckless operation of an aircraft, and unjust enrichment. The essence of the complaint is that the company breached its contract with its customers by carrying them on planes that missed safety inspections. This is pretty much the same as bringing a claim against someone because their negligence could have caused a car accident. It is just far beyond silly.

As I have said before, while these lawsuits have nothing to do with personal injury cases, they have a meaningful impact of the perceptions jurors have of personal injury lawyers and their clients. The message is clear: no one was really hurt and everyone is just trying to make a buck.

Yesterday, we settled a serious car accident case in mediation that I never thought would settle. The client was looking well beyond the fair value of the case, valuing the claim at $2.1 million (our maximum potential recovery with Maryland cap on pain and suffering damages) and defendant undervalued the claim from the very beginning. Somehow, after over six hours, the case miraculously settled. This is one of those cases that I had I had assumed as an article of faith that this case would have gone to trial. It really is hard to tell which cases are going to trial and which cases are going to settle.

But even more incredible than the case settling was the fact that the driver defendant came flew up from his home in Atlanta, Georgia for the mediation. Obviously, he was not required or expected to be there. After the mediation was over, he gave an incredibly articulate two minute speech apologizing to the plaintiff and his wife for the accident. This guy really put himself out in a way that provided him no benefit but he came because he thought it was the right thing to do and he wanted to accept responsiblity. It was one of those things that really gives you a warm, fuzzy feeling about our fellow man.

One more feel good story… I got back to my office this morning and a client who case is pending in Baltimore County Circuit Court sent to our lawyers and staff thanking us for our continued hard work. She included with her note what is essentially a $100 tip! Of course, we will send the check back to her but it definitely boosted my spirits when I got here this morning.

I saw today an interesting blog post by a Massachusetts law firm advocating that Massachusetts ban finance companies who offer loans to people using their personal injury cases as collateral. The post (and a comment to the post) argues that by making the loans non-recourse loans contingent on the settlement, these companies get around existing usury laws. Particularly in cases where liability is not at issue and payment is a near certainty, using non-recourse does seem like a backdoor around the law.

I have no idea of what my opinion is on these personal injury loans. It seems like the interest rate and the fees these companies charge is beyond ridiculous. But I'm sure these are risky loans from people who cannot otherwise obtain a conventional loan or even a credit card. As a personal injury lawyer, the loans are difficult because they make resolving the case and getting the client a good outcome all the more difficult. I had a case this year where the client took out a $23,000 loan that morphed into a $75,000 loan in three years. What ended up being a great settlement offer we received in mediation did not look nearly as good to the client who owed $150,000 in medical bills, legal fees, and the repayment of that loan. In this case, we did call the finance company which agreed to substantially reduce their loan from a preposterous return on investment to a mere obscene return on investment. The guy who I spoke to was a lawyer who owned the company and he was pretty reasonable. In the course of my negotiating the lien, I obviously contended that I thought the interest and fees were simply unconscionable. His response was that you cannot possibly know how many of these loans go bad.

Between unconscionable and reasonable, the answer probably lies somewhere in the middle. But obviously, in our free market economy, if there was that much money to be made making these loans, more companies would have entered the market, which would have decreased the overall cost of the loans. This reminds me of personal injury lawyers who complain about the obscene profits insurance companies make. If this were really true, wouldn't we all buy a ton of Allstate stock today? But take a look at their stock over the last three years.

It is worth mentioning that most of these personal injury loan companies have some clause in the agreement with the client that their personal injury lawyer cannot attempt to negotiate the loan. (I hope I am not giving an idea to the companies that don't have that clause.) We take the position that this agreement does not bind us from negotiating the lien and no one has ever suggested that our lawyers are obligated to honor that clause.

Although I'm hardly an expert on the Maryland legislature, I look at some of the bills that impact Maryland personal injury lawyers and their clients that passed or failed in this legislative session in Annapolis and provide some commentary on them on the Maryland Lawyer Blog today.

My blog post on Thursday left the impression that Allstate had produced all relevant documents that plaintiffs' lawyers have been demanding. Apparently, after reviewing all of the documents, this may not be the case. Click here for the Time-Picaqune (New Orleans) article on what plaintiffs' lawyers say is still missing.

Allstate's Fights Florida and Missouri

(battles with Missouri and Florida over claims practices)

Handling Claims with Allstate

(discussion of Allstate's handling of claims in Maryland and around the country)

Explanation of Colossus

(computer evaluation system that values Allstate's personal injury claims)

Tips on Pursuing Your Claim Against Allstate Without an Accident Lawyer

Sample Demand Letter

(sample demand letter used in making serious personal injury insurance claims)

Back in January, I wrote about Allstate’s on going war with the state of Florida (and Missouri) in which it arrogantly racked up more than $4 million in fines for refusing to turn over documents that they had been ordered to produce and which had been requested by the insurance commission in Florida. On Friday, Allstate not only produced 150,000 pages of responsive documents it had protected as proprietary, but it made the documents available on Allstate's website.

In defending some of the documents, a company spokesperson said that many lawyers misinterpreted the documents that refer to how Allstate deals with claims from other parties, not from policyholders. The Allstate spokesperson said many of the documents, which had been picked apart by plaintiff’s personal injury lawyers, refer to claims-handling practices for car accident claims that have been incorrectly assumed to be applied to homeowners’ policies as well.

If this is true, I see Allstate’s point. Accident lawyers whine about Allstate’s bad offers in third party cases. In car accident cases in Maryland, I don’t think GEICO, Progressive, Nationwide, MAIF, or State Farm are making offers that are any different than Allstate’s. But that is not my point. The insurance companies have no obligation in third party cases to make fair offers. Insurance companies can do whatever they want. This is why we have lawsuits.

Moreover, the reason why insurance companies will not pay fair value on my accident claims is because two things have to happen before a bad offer turns into a lawsuit: (1) the accident lawyer has to be willing to file the claim, and (2) the plaintiff has to be willing to file a lawsuit and wait for their recovery. With respect to the former point, accident lawyers who fear filing suit rarely tell their clients they will not file suit. Instead, the lawyer tells the client that it is a great offer and they should accept it. The main reason insurance companies make bad offers is because lawyers let them. The idea that insurance companies – again in third party case – have an obligation to be fair is as absurd as the notion that personal injury lawyers should have the goal of being fair. In the adversary system, if your goal is to be fair, you are doing your client a disservice. This is not to say that you should not recommend fair settlements, but it certainly should not be a plaintiffs’ lawyer’s goal.

First party insurance cases where the insurer has a duty to their insureds to fairly provide compensation for their injuries or losses are a different matter altogether. In these cases, I think there is ample evidence that Allstate has failed to meet their obligations and I would not be surprised if these documents intentionally blur the lines between smart strategies in third party cases where the insurance company has a legitimate objective to pay less than fair value on claims and first party cases where the insurance company has a legal and ethical obligation to pay their insureds fair value for their claims.

The FDA yesterday raised from 19 to 62 its estimate of the number of people who may have died as the result of the Baxter heparin recall.

Regrettably, this number is going to continue to rise well past 62 fatalities. Our law office alone has received calls in scores of heparin related death cases. Because people taking heparin often have quite complicated health problems, not all of these deaths will be the result of the use of heparin. But a substantial percentage of these deaths are the result of the contaminated heparin Baxter received from China.

Our Baxter heparin recall lawyers are accepting both individual and class action defective heparin recall cases throughout the country. If you want to discuss your heparin case with one of our Baxter heparin recall lawyers, call us for a free consultation at 800-553-8082 or click here for a free Internet consultation.

A House committee this week approved legislation that would give the FDA new authority over the tobacco industry, giving the FDA the ability to regulate the sale and marketing of tobacco products such as flavored cigarettes and "light and low tar" products. A floor vote on the House of Representatives is expected soon.

Okay, the FDA is unable to inspect Chinese factories leading to the deaths of scores of people in the Baxter heparin recall debacle because it is under funded and stretched too thin. So our Supreme Court responds by making them the ultimate gatekeeper and the "great decider" as to whether drug companies are negligent (as opposed to the cute, yet silly, citizens of our country), and Congress responds by giving them even more work – regulating the behemoth this is big tobacco.

Now, incredibly, to complete the governmental insanity trifecta, we need President Bush to join in the fun. Who knew he would be the holdout? My guess is that he will find a way to oblige. He’s good like that. Maybe next week he will declare his plan that if the FDA approves a doctor – a one page Internet application by the doctor should do it - then no medical malpractice action can be brought against the doctor.

A recent Jury Verdict Research analysis of jury verdicts over the last 10 years found that the overall median award for the amputation of one toe is $119,008. The median award for foot nerve damage or tarsal tunnel syndrome accident cases was $143,265. Underscoring the difficulties of the healing process in the complex structures that are our feet, the median award for foot injuries generally is $98,583.

The median for foot injuries generally makes sense to me. I’m stunned that the average verdict for an amputated toe is as low as it is. You have to remember that unless this is a lawnmower case, it is likely that the plaintiff suffered other injuries as well. In any event, I certainly think I value my 10 toes more than American juries.

For information the value of foot injury fracture cases, click here.