Maryland Injury Lawyer Blog

Since the Supreme Court’s disaster in Riegel v. Medtronic, I have been hoping and expecting Congress would step in to fix the Supreme Court’s ruling, because it was clear from the amicus briefs submitted in Riegel, from history and from common sense, that Congress did not intend to preclude medical device tort claims. Yesterday, California Congressmen Henry Waxman and New Jersey Congressman Frank Pallone, along with 62 bipartisan supporters, introduced HR 6381, the Medical Device Safety Act. This bill would effectively undo the wrong the Riegel does to medical device victims. The Senate is expected to offer a similar bill next month.

As the Wolf said in Pulp Fiction, we can’t start congratulating ourselves yet (I’m paraphrasing). This bill has not even made it out of a committee yet. But at least something is happening.

Voir Dire in Maryland is often a difficult experience for injury lawyers on both sides of the aisle because Maryland arguably has the most truncated voir dire process in the country. I’ve tried a lot of cases where both lawyers were able to glean just a few relevant things from the jurors, we make the obvious strikes and both parties end up not really knowing anything about who is on their jury. I’ve written a little bit about this problem in a previous Maryland Injury Lawyer Blog post.

The Maryland Bar Journal has an article this month by Carolyn Koch of Jury Solutions, LLC offering some tidbits on ways to get a bit more information under Maryland’s limited voir dire process. Two of her suggestions I found to be particularly interesting.

Ms. Koch suggests the following question: If you or someone close to you was injured due to someone else’s negligence, do you think you would bring a lawsuit?

I would add something to the effect of “if the claim was not resolved to your satisfaction” but I think this is a great question that we have not requested. I know a lot of judges in Maryland who are not going to allow this question or anything like it that diggs too deeply into opinions. But I think it is a great question to put on your proposed list of voir dire.

The second idea Ms. Koch mentions that I think is a great idea is that you ask the judge if the lawyers can give each juror a print out of the voir dire questions to encourage more responses. While this makes a lot of sense to me, there are two practical problems. First, it is rare to have a copy of voir dire that satisfies the judge and the defense lawyer because usually questions are taken from both lawyers’ voir dire. Second, while it does make sense, it is a bit outside the box so you risk annoying the judge just like you risk annoying the waiter when you make four modifications to the dish you order. Whether the latter problem is worth the trouble will depend on the judge you draw.

The University of Chicago Journal of Legal Studies published an interesting article on medical malpractice tort reform. Current Research on Medical Malpractice Liability: Medical Malpractice Reform and Physicians in High-Risk Specialties, 36 J. Legal Stud. 121 (2007). The article supports the plaintiff’s view of medical malpractice tort reform… with a very notable exception.

The article concludes that introduction of medical malpractice reform in response to the fear of losing doctors may be misguided because the “relationship between medical malpractice reform and physician labor supply suggest that the effects are modest.” The article suggests that many doctors are likely to be indifferent to medical malpractice reform “because their likelihood of being sued is low.”

Interestingly, the article references one study by Eric Helland and Mark Showalter titled, “The Impact of Liability on the Physician Labor Market,” which indicated that medical malpractice damage caps induce physicians to work more hours in a year.

Helland and Showalter found that medical malpractice reforms did not increase the supply of doctors in some underserved communities (a topic of two Maryland Injury Lawyer Blog posts back in March). But the article points out that other tudies have disagreed with this assessment.

In fact, because the purpose of this blog is not simply to point out every fact that plays to medical malpractice lawyers’ views of tort reform, it is worth noting one finding that, if borne out by other studies, is significant. The article found that, although the results are not entirely clear, non-economic medical malpractice damage caps appeared to improve the black infant mortality rate by 6%.

There is nothing insignificant about such a finding. But, as the article points out, it may be that the correlation is the result of endogeneity. In other words, the passage of medical malpractice reforms may be related to unobserved factors that also correlate with the size of the physician workforce. (This is why I have never liked the malpractice lawyers’ argument that medical malpractice damage caps do not lower malpractice insurance rates because, all things being equal, I’m sure they do even if the data does not show it.)

The latter theory is my theory that the study is not looking at “all things being equal” and there are other factors at play. I base this on my review of the totality of the studies on this and my own common sense. Moreover, the larger question is whether it is a zero sum game. If infant mortality goes down in one state but goes up in another, what has been accomplished? Still, only a fool or someone with an incredibly closed mind looks at a study that sees an improvement in infant mortality and just shrugs their shoulders.

The Maryland Daily Record reports today that The Law Offices of Peter G. Angelos intends to file an appeal in a Baltimore City medical malpractice case in which the Plaintiff’s $10.2 million jury verdict against University of Maryland Medical Center was capped at $632,500.00 because that is the limit on non-economic damages.

The Daily Record reports that the Plaintiff's medical malpractice lawyers intend to argue that: (1) the limitation on damages has not accomplished its purported legislative objective of reducing medical malpractice insurance rates for doctors; (2) the Maryland cap on non-economic damages is pre-empted by the ADA; (3) that it violates equal protection and due process; and (4) that it deprives the jury of the information necessary to make an informed decision.

Not surprisingly, Baltimore City Circuit Judge Carol E. Smith denied Plaintiff’s motion to overturn the cap and reduced the Plaintiff’s verdict to his medical expenses and $620,000.00 in non-economic damages (the malpractice must have occurred between October 2002 and September 2003).

I’ve written here about 10,000 times that I think that caps on damages are unjust. As a Maryland malpractice lawyer, I’m rooting for the Plaintiff to convince the legislature to overturn the cap. I think the result would be justice and a system where we do not discriminate against those that have been the most seriously harmed. That said, if I were on the Maryland Court of Appeals, I would find that the Maryland General Assembly made a law that it had every right to make when it instituted a cap. Because there is no law against dumb laws.

Six years ago, we decided that representing corporate defendants and billing by the hour was not for us so we started our own law firm. We had a clear vision as to what would bring us success: yellow page advertising. That was the vehicle, we assumed.

Yet there is a little known secret about yellow page advertising: in the 21st century, it does not work. Minor flaw. Not knowing this, we poured over a million dollars into yellow page advertising.

Every single year of our practice, we earned more in fees from cases referred from other lawyers than any other source. Our current yellow page budget – except for a small local community book – is now zero.

The advantages of a referral-based personal injury practice are plentiful. First, obviously, there is no significant advertising budget.

Second, the clients are actually much better and much easier to work with on their injury case. Why? Because being referred by another attorney is a hallmark of success for a personal injury lawyer and, accordingly, your client looks at you differently than he/she would if you were retained out of the yellow pages.

Third, it increases the collective self-esteem of your law office. Our five lawyers are very ambivalent about the business side of the practice because we all consider ourselves lawyers, not business people. And the honest truth is we are self-conscious about the reputation of personal injury lawyers. A referral-based personal injury law practice enables the personal injury lawyer to avoid the more disconcerting means of attracting cases, most notably yellow page or television advertising.

Unlike many personal injury lawyers, I have nothing bad to say about lawyers that advertise on television. Moreover, television advertising reminds people that they do have remedies when they have been injured by the negligence of another driver or a doctor. While many lawyers might disagree, I think this is largely a good thing.

Typically, most lawyers who advertise on television get the case and then refer it out to a competent lawyer who will handle a case of that size. With some exceptions, that is the system. That is an efficient system for injury victims who otherwise have no clue as to who the best lawyers are for their particular needs.

That said, there is a stigma attached to television advertising. While I would argue it should not exist, it does. Accordingly, I think our lawyers and the rest of our team enjoy that were are lawyers’ lawyers and the not the type of lawyers their neighbors are mocking at cocktail parties.

(Random digression: We talked about doing television advertising when we started our practice, saying that we would do something low key and dignified. Eventually, we killed the idea because if low key and dignified worked, everyone would be doing that as opposed to unseemly depictions of medical malpractice and sirens blaring in the background.)

Fourth, if you are doing it right (see below), you are going to get higher quality cases. The cases that come in from advertising are like shooting darts in the blind – you are going to hit the bull’s-eye now and again but, most of the time, you are going to miss. It’s a numbers game where the odds are against you and the time you spend fielding calls in cases that you are not going to handle, or in handling small cases to their completion, is great. In contrast, if your referring lawyers are sending you good cases, you earn higher fees doing the same work because – as any experienced personal injury lawyer will tell you - working up a $50,000 case is largely the same as working up a $500,000 case.

Finally, and very importantly for us, it that it allows us to increase the geographical area we cover. Clients are not going to choose a lawyer whose office is on the other side of the state or in a different state then they live or work out of the yellow pages. But if you receive a case by way of referral from another lawyer, the client will see you as the lawyer they need to have and are more likely to accept the geographical distance between you (which, in 2008, is more psychological than anything else).

How do you develop a lawyer referral based personal injury practice? We developed ours by accident, but I do have a few thoughts as to what we did successfully to build our referral practice:

1. Join and become active in your state’s trial lawyers’ association

Getting yourself known in the legal community is the first step in building a reputation. I figured that getting involved in the Maryland Trial Lawyers’ Association would be like trying to get food from a fellow shark. But we have obtained millions of dollars in verdicts and settlements from other Maryland personal injury lawyers who decided that we were better suited – economically or by experience – to handle their client’s injury or malpractice cases. I have not gotten directly involved myself – I’m a law professor who teaches three semesters a year - but two of our lawyers are on the Board of Directors of the Maryland Trial Lawyers’ Association and I think that helps. It takes them both out of the office more often than is sometimes optimal but they improve the prestige of our firm while also working for all injury victims in Maryland (which includes our clients).

2. Develop a reputation

How do you do that? The single best way to develop a reputation as the personal injury lawyers’ lawyer is to try cases successfully. Word of big verdicts spread with a speed that shocks me to this day. It is not hard to find an insurance company who will make an unfair offer. Try those cases, get some big verdicts, and people will notice.

Another way to develop a reputation is to establish yourself as an authority on personal injury subjects by speaking to groups of lawyers or publishing in periodicals that target lawyers. My partner, Laura G. Zois, speaks in Maryland and throughout the country on personal injury issues. I have co-authored a two-volume treatise on the handling of personal injury cases.

3. Choose your cases with care

You might think that taking every case that a referring lawyer sends to you will further the relationship. I think there is nothing further from the truth. Cases that have bad outcomes never further the lawyer-to-lawyer relationship because they are too often fraught with hand wringing from the clients which leads to stress on the referring lawyer who sent you the case. If you cannot get a successful outcome – however that is defined to you or the client – do not take the case.

4. Choose your referring lawyers with care

We were sent a car accident death case from an out-of-state personal injury lawyer earlier this year with a relatively insignificant liability dispute and high insurance limits. The referring lawyer proceeded to set the stage for the entire litigation game plan we would pursue. The plan was highly flawed and required the creation of work for the sake of appearing to do something. The lawyer also wanted daily conference calls on such topics as “how to handle the clients.” We immediately withdrew from this case.

5. Consider your state’s fee splitting rules

There are rules governing referral practices and the sharing of fees. Most jurisdictions support the idea of fee sharing because it often leads to the most qualified lawyers handling the most serious cases. Many states have adopted the American Bar Association's Model Rules of Professional Conduct ("Model Rules"). These rules enable lawyers to collect co-counsel fees on cases they do not have primary responsibility for. Most states require the client be aware of the fee-splitting arrangement. (Even if your state does not, do it anyway.)

6. Let Other Lawyers Know You Handle Referrals and the Fee Splitting Basis

With one exception, every referring lawyer we have, approached us as opposed to us approaching them. We have just recently started making more of an effort to let other lawyers know that we encourage referral work. (Note the title of his blog post is “Attention Lawyers: I am Your Maryland Injury Lawyer.) We have not systematically gotten this message out because most lawyers are focusing on the cases in front of them as opposed to time consuming marketing strategies. But it is a good idea to let other lawyers know that you are taking referral cases and letting them know about the results you have achieved for other lawyers.

7. Work Your Cases

The key is results, but you have to work up your cases well. Require their experts to produce financial records, find the right vocational rehabilitation expert, make them answer interrogatories fairly and do everything you can to get your case prepared for trial. This leads to results and this leads to repeat referring lawyers.

As your network grows and your referrals expand, you will be able to increase the quality of your case load. In 2002, we accepted anything that came through the door. Now, we will not accept any referral case that is not a serious injury or death case with a few exceptions, such as past referring attorneys that have been with us from the beginning, if the referring lawyer refers all of their personal injury cases to us or the referring lawyer is from out-of-state.

8. Focus on Personal Injury Cases

Many disagree with me but I think if you are a personal injury lawyer, you should be a personal injury lawyer. Easy fees in criminal and domestic cases are tempting but they distract you from your mission of being the best personal injury lawyer that you can be and getting the most out of your cases.

Finally, with an eye towards #6, I remind every lawyer reading this to give us a call if you have a serious or fatal car or truck accident, medical malpractice or defective product case in Maryland.

Jury Verdict Research provides median award data and verdict probabilities in head-on auto, truck and motorcycle accident cases nationally. Plaintiffs prevail and recover damages in 64% of these cases. Surprisingly, the median award in these head-on collision personal injury cases is only $31,875.00. This number reflects the fact that 24% of the head-on collision claims in the study were for “back strains” where the average award is only $9,312.00. These are probably not the injuries we think of when we think of a head-on collision.

But here is a real shocker: the median head injury verdict in head-on collision accidents is only $25,000.00. If you have a head injury, typically you have a serious accident. So this data is – to say the least – not what I think most car accident lawyers would have suspected. If I had to guess at the head-on collision national median, I would have predicted the number would be at least six figures. I would suspect that the average - as opposed to the median - exceeds $200,000 but I could not find any data to support my hypothesis.

Other median verdict data of interest in head-on collision cases:

Leg injury head-on collision: $156,818.00

One way street head-on collision: $27,064.00

Curves, hills and bridges head-on collision: $50,000.00

Fatal head-on collision: $509,919.00

The National Law Journal has an article on the increasingly contentious battleground over the circumstances of “independent medical exams.” Personal injury lawyers in Maryland in car and truck accident cases are increasingly battling over the terms and conditions of the plaintiff’s medical exam, from who can attend the exam to more substantive concerns like the production of the IME doctors’ financial records. In the last 24 hours we have had two separate disputes with defense lawyers that we like and with whom we regularly cooperate. One involves the defendant’s lawyer wanting a doctor in Washington D.C. that just coincidentally is outside our subpoena power. Interestingly, the doctor lives in Maryland but has an amazing skill of evading service. (Does that show up on his C.V.?)

You can find the entire article here which includes a quote from me.

Related Posts:

Our Conditions for an Independent Medical Exam (IME)

Should Lawyers Videotape Independent Medical Exams?

How to Cross Examine IME Doctor

Response to Protective Order for IME Doctor Not to Produce Financial Records

The latest edition of Metro Verdicts Monthly provides numbers on false arrest/imprisonment cases in Virginia, Maryland and Washington, D.C. The median legal false arrest/imprisonment verdict or settlement in Washington D.C. was $25,000.00. Virginia and Maryland have slightly higher median settlement/verdicts of $26,000.00 and $29,000.00, respectively.

Our law firm does not handle these cases. (On the rare occasion we get a false imprisonment/false arrest/police brutality case we refer the case to Larry Greenberg, a Baltimore lawyer, who does a really good job and aggressively works up those cases.) But I’m surprised the median verdict/settlement is this high because I would think the median case would be one with relatively insignificant injuries except for the inconvenience. There are awful exceptions to that rule to be sure but those awful exceptions would be reflected in the average – as opposed to the median.

While I obviously love these graphs, I wish Metro Verdicts Monthly would provide a little more information. I’m not sure if this number only involves police officer false imprisonment cases or also includes non-police cases where, for example, a department store detains someone they wrongfully accuse of shoplifting. If I were a juror, I would be more inclined to give a larger award against an overzealous Wal-Mart or Target employee than I would a police officer trying to do his/her job in good faith, albeit negligently.

The Maryland Court of Special Appeals ruled yesterday in Peyton-Henderson v. Evans that Baltimore City Circuit Court Judge George L. Russell, III did not err in transferring a lawsuit from Baltimore City to Baltimore County that was filed as a result of the May 2004 shooting at Randallstown High School.

The ruling covers no new ground but (sort of) retired Judge Charles E. Moylan Jr. lays out the history of the Maryland case law on forum non conveniens. The court underscored the more modern Maryland trend to focus on “the interests of justice” as opposed to concentrating on convenience of the witness. With a standard as amorphous as “interests of justice” you can be pretty sure that absent some insane finding, the appeals court is going to defer to the trial judge. This is why I’m surprised this case was appealed in the first place.

Judge Moylan jabbed lightly at personal injury lawyers who forum shop, quoting now Court of Special Appeals Judge Krauser, “while home may be where the heart is, it is not necessarily where the largest recovery lies.” But, in the next breath, Judge Moylan points out that “is beside the point when dealing with the venue statute rather than forum non conveniens” because Plaintiff is well within his or her right to file suit anywhere where venue is proper.

One other thing I got out of the case is something I think I already understood but is worth noting: the denial of a motion to transfer a case would be interlocutory and not immediately appealable but the affirmative order of a transfer is subject to immediate appellate review. I don’t think we have ever appealed a forum non conveniens transfer simply because we never had a case where we thought the transfer was an abuse of discretion. But it is still good to know.

I read over the weekend an interesting decision from the Connecticut Supreme Court that came out last week. The case, Monti v. Wenkert, is an absolutely awful medical malpractice case involving a seventeen year-old girl who presented with significant but subjective symptomology that was dismissed as psychological by her GP, his physician’s assistant, and the emergency room at the hospital. This diagnosis continued even after she collapsed at her doctor’s office with “blueish, purple” lips. The young girl died of acute respiratory distress syndrome caused by a viral infection. Like I said: awful. I don’t suspect this case will show up on the cover of Tort Reform Monthly anytime soon. It is anyone's guess how this case made it to verdict.

At trial, after the close of Plaintiffs’ case, Plaintiff and one of the Defendants agreed to a high-low agreement that was not disclosed to the other Defendant. After an adverse verdict the Defendant who was kept in the dark appealed his case.

The court explained the perils associated with Mary Carter and undisclosed high-low agreements and found that all verdict contingent settlement agreements must promptly be disclosed to the court and to the lawyers for any non-settling defendants. Such agreements cannot be used to prove liability or damages but can be admitted – within the trial court’s discretion, to show bias or prejudice of a witness.

In this case, however, the Connecticut Supreme Court gives the Plaintiffs’ a pass on their failure to disclose the agreement because it came after the Plaintiffs’ had rested their case and because the agreement did not change the adversarial alignment of the parties.

If the Connecticut rule is that the agreement should have come into evidence, I think the non-settling defendant could have used this agreement effectively on cross-examination. I think the court may have cut the Plaintiffs’ a break in this case probably because upsetting the verdict in this case – given the facts – would seem unjust.

You can find the full opinion of the Connecticut Supreme Court in Monti v. Wenkert here.