Maryland Injury Lawyer Blog

Although our lawyers cover personal injury and medical malpractice cases throughout Maryland, I have to admit we have not handled many Garrett County personal injury cases. Garrett County is the westernmost county in Maryland, and I think the many malpractice and accident victims in Garrett County unfortunately turn to Pittsburgh lawyers in serious injury and malpractice cases.

Apparently, for District Court claims in Garrett County, to not have many Garrett County claims is a good thing because the Oakland court is without a judge, according to a Maryland Daily Record article today.

Over fourteen months have passed since the tragic death of Garrett County’s District Court Judge Ralph M. Burnett from colon cancer complications. Judge Burnett, who apparently was a tireless advocate in the fight against prostate cancer for over 10 years, was Garrett County’s only district court judge. Today his seat remains unfilled. Apparently, the nominating commission for Allegany and Garrett counties recommended two of the four candidates that applied.

The nominating commission forwarded the names of Raymond G. Strubin, a Garrett County public defender and, and Daryl T. Walters, a Garrett County Master, to Governor O’Malley. But the Governor requested three names and asked for the reconsideration of Stephan M. Moylan (who I believe is also a public defender in Garrett County) and Lisa Thayer Welch, who is a State’s Attorney in Garrett County. The commission bitterly did just that, but still refused to recommend Ms. Welch or Mr. Moylan.

Interestingly, according to the Cumberland Times-News in April, a petition gained 747 signatures requesting Governor O’Malley investigate the “official conduct of the State’s Attorney for Garrett County, Maryland, Lisa Thayer Welch, and the Sheriff of Garrett County, Maryland, Gary Berkebile” in regard to their handling of a shooting involving Sheriff’s Berkebile’s brother-in-law.

I get the impression that the Sheriff Berkebile was more the target of outrage because of the way the investigation was handled when his brother-in-law shot a friend at the friend’s house while drinking at 2:00 a.m. in the morning.

Apparently, the victim was discussing with his ex-girlfriend getting back together. But the ex-girlfriend was the shooter’s current girlfriend while all three were in the shooter’s house. Talk about a recipe for disaster. Then, throw in a little – probably a lot – of alcohol. Shockingly, an argument ensued and during the argument, the victim grabbed a knife from the shooter’s kitchen, and cut the shooter’s thumb. (I’m not sure why the victim was so mad.) In what could not be described as a proportionate response, the shooter went into his bedroom and retrieved a gun. After a brief exchange of words, the shooter shot the victim three times. (The take home message particularly for those of you under 30 out there: nothing good happens at 1:00 a.m. No by 1:00 a.m., if you have not accomplished what you are trying to accomplish, it is time to call it quits. Nothing. Ever. Trust me. Now back to our story....)

The brother-in-law claimed self-defense, the investigation moved slowly and evidence was missed, according to the story in the Cumberland Times-News (think O.J. to the 3rd power). But the attack on Ms. Welch was that she waited 10 months to file charges and then agreed to an “imperfect self defense” plea just last week that has a maximum sentence of only 10 years, in spite of the fact that an eye witness clearly rebuts any notion that the shooting was in self-defense.

The whole point is that Ms. Welch obviously has made – rightly or wrongly – a few enemies along the way. (I kept babbling on the story because they story is interesting, as is the underlying politics.)

Meanwhile, the Daily Record reports that Garrett County Circuit Court Judge James L. Sherbin along with Allegany County’s two District Court judges, Judge Edward A. Malloy, Jr. and Judge H. Jack Price, have been coming in from Cumberland to help with the workload created by the vacancy. But you have to think these guys are getting tired!

A New York Times article yesterday on the Zimmer Durom Cup's problems underscores the post-market surveillance problem with drugs and medical devices, pointing to the Zimmer Durom Cup problems that have led to Zimmer recalling their hip replacement component. This is a Zimmer fault; they should have a system of tracking and honestly responding to reports of problems with their hip replacement components. But we clearly cannot expect drug and medical device companies to police themselves. In this case, the Zimmer Durom Cup recall was precipitated by Larry Dorr, an orthopedic surgeon who is the medical director of the Dorr Institute for Arthritis Research and Education in California, essentially outing Zimmer by courageously (he was well paid by Zimmer as a consultant) speaking up in public about the problems and Zimmer’s blind eye to them.

Safety and speed are the yin and yang of the regulation of drugs and medical devices. Americans want both; we want safe medical devices that have been tested, but we also want instant access to breakthrough products. But the reality is that not all new drugs and devices should be treated equally. We needed to rush new AIDS drugs onto the market without much testing 10 years ago because the risk-benefit analysis demanded it. But do we need a new anti-smoking drug like Chantix, or a new defibrillator lead that is a little thinner than the last generation (Medtronic), with such great speed? Sure, the marketing department of the drug and device companies would prefer it that way, but is that the best thing for the consumer or even the pharmaceutical company in the long run?

Adding to the problem is the Prescription Drug User Fee Act in 1992, which was a deal between the FDA and the drug industry. Drug and medical device companies agreed to pay millions of dollars in fees, and the FDA promised that drug and medical device reviews would be completed within a year for those products on the fast track.

But as I pointed out last year, all of this new FDA money was for clinical trials and other pre-market efforts. No investment was made into the post-market surveillance once the product was actually being used by consumers. While the FDA still looked at drugs and medical devices after they were put on the market, this wing of the FDA became the odd man out with respect to funding, which means it lost the best people and resources.

The Prescription Drug User Fee Act in 1992 was well intended. But we need to focus more energies and money on trying to find new funding and give more attention to these products after they are on the market. As the Times article points out, many believe that a starting point is a national database — employed by such countries as Australia, Britain, Norway and Sweden – to register these problems and require the companies to explain the reports.

For a real life example, Zimmer still sells in the United States a knee implant, known as the Unispacer, even though Australian doctors stopped using it three years ago after registry data showed it had quickly failed in more than half the 40 patients who received it there.

While a national registry and more accountability would not be a panacea, it would be a great starting place. We have 1 million hip replacements in this country each year. From an economic standpoint alone - for those of your who are not moved by human suffering - wouldn't it make sense if we monitor how well the replacements are working?

It is still early but we believe there many be a great number of claims Our lawyers are investigating Zimmer Durom Cup recall claims throughout the United States. If you believe or suspect you have received a Zimmer Durom cup component and are having problems (or are a referring lawyer), our Zimmer Durom Cup recall lawyers will review your claim. Call a Zimmer Durom Cup lawyer at 800-553-8082 or click here for a free Zimmer Duron Cup lawsuit free consultation.

While I was on vacation, I promised more commentary on Matsuyama v. Birnbaum, a landmark medical malpractice opinion on loss of chance from the Massachusetts Supreme Judicial Court.

In Matsuyama, the 42 year-old Plaintiff’s decedent, Mr. Matsuyama, saw the Defendant doctor, a board-certified internist and the Plaintiff’s primary care doctor, for a physical in July, 1995. Mr. Matsuyama's medical records from that visit indicated disclosure of complaints of gastric distress for the last seven years and that Mr. Matsuyama's prior doctor had noted that he might need additional tests to evaluate his symptoms.

The Defendant doctor testified that Mr. Matsuyama complained of "heartburn and difficulty breathing associated with eating and lifting." The Defendant also knows Mr. Matsuyama was a smoker at high risk for developing gastric cancer. Without further testing, the doctor diagnosed Mr. Matsuyama with gastrointestinal reflux disease.

Plaintiff’s expert testified that at this point the doctor committed medical malpractice by failing to order the appropriate tests, and, over a year later with the same symptoms and facts available to him, he continued his diagnosis in spite of complaints that Mr. Matsuyama’s heartburn was worse and that he had gastric pain after eating. A year later, Mr. Matsuyama again visited his doctor and asked about moles that been developing. The doctor diagnosed “benign seborrhea keratosis."

I’m getting deeper into the medical facts here than I would like, but you get the point. Mr. Matsuyama went back to the doctor with more symptoms consistent with gastric cancer and his doctor continued to fail to test more thoroughly for cancer. But in May, 1999, when his symptoms went through the roof, the doctor ordered a gastrointestinal series and an abdominal ultrasound, which quickly revealed a two-centimeter mass in Matsuyama's stomach. He died in October, 2000, leaving behind a wife and child.

After a six-day trial in Norfolk County Superior Court, the jury found the doctor negligent and found that the doctor’s medical malpractice was a "substantial contributing factor" to Mr. Matsuyama's death and awarded Matsuyama's estate $160,000 for pain and suffering caused by the negligence. Then, in response to a special jury question, the jury awarded damages for “loss of chance.” They calculated the damages to be $875,000 as "full" wrongful death damages and found that Matsuyama was suffering from stage-2 adenocarcinoma at the time of doctor's initial negligence and had a 37.5% chance of survival at that time. The Norfolk jury awarded the plaintiff "final" loss of chance damages of $328,125 ($875,000 multiplied by .375) for a total of $488,125.

Continue reading "Lost of Chance in Medical Malpractice Cases: What Massachusetts Has Done and What Maryland Should Do" »

While making clear to potential referring lawyers that our law firm is handling Chantix cases, I always gave Pfizer credit that Chantix did help users quit smoking, even if it did appear to cause a host of health problems to a minority of users. Now GlaxoSmithKline begs to differ.

In a study Glaxo recently commissioned, Chantix is found to be no better at helping patients quit smoking than therapeutic nicotine such as NicoDerm. Of course, Glaxo makes NicoDerm, so it has motivation to find as it did, but the results are interesting. These results were published yesterday in the August issue of Thorax.

Our lawyers continue to accept cases involving Chantix claims from those who have suffered adverse effects from Chantix. To inquire about a potential Chantix lawsuit, you can call a Chantix lawyer at 800-553-8082 or click here for an Internet consultation. For more information on Chantix lawsuits generally, click on the preceeding Chantix lawsuits link.

I am back from vacation and should be posting again later today or tomorrow on the Maryland Injury Lawyer Blog. In the meantime, if you are looking for some local personal injury lawyer blog material, take a look at the new Baltimore Injury Lawyer Blog. This blog is written by John Bratt, one of our lawyers at Miller & Zois.

When I first read John's Baltimore Injury Lawyer Blog, I read a few things and thought, "Wait, I would not have written that." But that's the point, getting another viewpoint of the issues malpractice and accident lawyers face.

I’m looking forward to seeing how John’s injury blog progresses. One thing I can promise you is that the blog will offer real information and things of interest to personal injury lawyers – not some blog telling personal injury victims what to do if they are in an accident or the victim of medical malpractice (of which we now have officially ten million of on the Internet) or a description of the accident on Pratt Street that was reported in the Baltimore Sun. So add it to your list of favors and send any comments or questions to John at JohnBratt@millerandzois.com.

The Massachusetts Supreme Judicial Court - Massachusetts' highest court - ruled yesterday that medical doctors can be held liable for medical malpractice that reduces a patient's chance of survival, even if the patient's chances of recovery was already less than 50 percent.

Maryland also has a loss of chance case currently pending before the Maryland Court of Appeals although few Maryland medical malpractice lawyers expect Maryland will go as far as Massachusetts has in this case.

I'm on vacation this week but I'll read and report on this important opinion next week.

The Supreme Court of Montana rendered an interesting decision last week on the issue of the claim for emotional injury in Allstate Ins. Co. v. Wagner-Ellsworth.

The case involves a car-pedestrian collision. Two brothers were crossing the street in front of their elementary school and one was seriously injured. Allstate settled this claim for the per-person policy limit of $50,000.

The injured victim’s mother and brother retained a car accident injury lawyer and filed suit claiming emotional and physical injuries, contending that they were “injured” as a result of the brother seeing the accident and the mother by the trauma she suffered arriving on the scene after the accident.

In response to the lawsuit, the negligent driver sought both coverage from liability and a lawyer to defend the claim. Allstate filed a declaratory judgment action arguing that it was not required to provide a lawyer for its insured because its coverage did not extend to claims of emotional or psychological injuries and any resulting physical manifestations of those injuries. (You are in good hands with Allstate as long as you pay your premiums and never make a claim.) The trial court granted Allstate’s motion for summary judgment relying on Jacobsen v. Farmers Union Mutual Insurance, a 2004 opinion from the Montana Supreme Court.

The Montana Supreme Court reversed, relying on the following policy language: “Allstate will pay damages which an insured person is legally obligated to pay because of bodily injury sustained by any person ..." The Montana high court noted that the policy did not state that "damages must result from 'bodily injury' sustained by the 'insured.'" In so doing, the Montana Supreme Court specifically overruled the court’s prior holding just four years before in Jacobsen v. Farmers Union Mutual Insurance.

I’m a fan of stare decisis but I’m a bigger fan of the Montana Supreme Court’s unanimous willingness to quickly change what it perceived to be a mistake. I also think they made the right call because the law is well settled that you can recover for physical manifestations of emotional trauma in these types of case. That said, if I were on a jury, would I be skeptical of these kinds of injures? Yes, I would. The Plaintiff’s lawyer, Roland B. Durocher, a personal injury lawyer in Great Falls with Hartelius, Ferguson, Kazda, Baker & Durocher, certainly has an uphill climb in this case. Unless the clients are compelling, I think this case will have little chance of success.

Medical Justice is what appears to be a new organization whose aim is to “’prevent, deter and respond’ to frivolous malpractice lawsuits.”

This seems like a goal we – including good plaintiffs’ medical malpractice lawyers - can agree on, right? Frivolous lawsuits hurt everyone. For a cost of $625 to $1990 a year Medical Justice will give you:

•Pursuit of counterclaims against expert witnesses in their professional societies and state licensing boards

•Published database of members on the Internet to notify plaintiffs and their representatives that the physician is backed by an organization with the expertise, will, and funds to fight back

•Establishment of pre-emptive critical practice infrastructure to deter plaintiffs without interfering with the patient-doctor relationship

•Proactive early intervention strategy that can be executed in the event you are sued

•Access to PEER team of volunteer defense experts

•License to use Patient-Physician contract template language

•License to use contract template language to prevent being forced into small-claims court

•License to use contract template language to prevent physician being defamed on the Internet

•Access to program to address unwarranted requests for refunds or write-offs

•Allocation of up to $100,000 as assignee to pursue viable counterclaims, when requested and appropriate

Except for the first and the last, these are pretty much fluff benefits. The most absurd is the use of “license[d]” contract language to file a complaint. Please. I’ll put these on the Maryland personal injury lawyer website to save everyone the trouble.

I find the first one interesting – the pursuit of counterclaims against expert witnesses. It is an interesting strategy of trying to attack experts who are willing to stand up for patients. The last one is also interesting: up to $100,000 in legal fees to pursue counterclaims when “requested and appropriate.” Gee, I wonder who gets to decide what is appropriate… I’m guessing Medical Justice.

What troubles me about Medical Justice is the kind of doctors this is likely to attract: good doctors. This program appeals to good doctors who are unlikely to ever have a medical malpractice claim brought against them, but they fear frivolous lawsuits. As awful as they are for society, there is never going to be a jury verdict in a frivolous case. So why should doctors fear frivolous lawsuits? The doctor’s malpractice carrier will hire an excellent medical malpractice defense lawyer to get the case dismissed long before a settlement or verdict.

Wait you say, jurors award damages in frivolous medical malpractice lawsuits all of the time and frivolous malpractice cases settle all of the time. Okay, let’s ignore the studies that prove this is false and just pretend this is an accurate statement. If a case is settled or a jury finds against you, that is going to be an absolute defense to any claim that a medical malpractice lawsuit is frivolous. So there is no way this “insurance policy” (which I doubt is actually an insurance policy, anyway, because I suspect the term frivolous will be defined by Medical Justice) is going to have any real meaning for end users. It is like selling terrorism insurance in some farm town in Kansas. It is an illusory security blanket. (This was probably shot down as the Medical Justice motto.)

Medical Justice is “run by physicians for physicians.” They don’t exactly note this is a non-profit. So it is doctors trying to make a buck off other doctors by capitalizing on their fear of medical malpractice.

On the Medical Justice website, they offer a slew of testimonials, the majority of which are just puff, vague, “hey, you are great” testimonials. Of the few “results” testimonials Medical Justice offers, all could be attributed to the work of the doctors’ medical malpractice lawyer whose job it is to defend these cases in the first place.

If I’m wrong about this, Medical Justice let me know. And here is my challenge to you. Tell us exactly what your “results” have been. How many lawyers have you successfully brought claims against for filing frivolous lawsuits? How many actual claims have you brought? How many experts have you sued for standing up for patients? How many experts have you sued successfully? How many volunteer experts have acually provided testimony? If I’m wrong, I’m wrong. But I doubt it. If you are a doctor reading this, please make sure you ask these questions before you give them a single penny.

There was an auto accident last night at I-70 and the Baltimore Beltway in Maryland last night at 3:54 a.m.

Are you a lawyer who has started a blog this way? If so, stop it because you are driving me crazy. No, seriously, stop it. The Baltimore Sun can and will report these stories just fine without your repeating them, thank you very much.

The Internet is such an amazing resources for personal injury lawyers to gather information about the handling of their cases. But to use this resource, you have to wade though so much junk. If you are just rewriting stories from newspapers without any thought or commentary, you are useless to the rest of us.

Medical malpractice lawyers in New York today released incredible surveillance camera video from Kings County Hospital in Brooklyn, New York, showing a 49 year-old woman dying on the floor of a psychiatric emergency room while being completely ignored by the hospital staff.

The video shows the woman keeling over and falling out of a chair on June 19, 2008, and lying facedown on the floor, then thrashing wildly before going limp. A full hour passes before anyone bothered to try to help.

Absolutely incredible video that reminds me of the Rodney King incident. If it was not on video, no one would ever believe that it happened as the plaintiffs’ lawyers will argue.

I have no problem with these malpractice lawyers releasing the video of this incident in principle. It may - with the caveat below - enhance the value of this malpractice case from a settlement perspective. Still, I find it disconcerting that a lawsuit gets a lawsuit filed in a malpractice case within two weeks. It is impossible to get a malpractice case ready for filing two weeks after someone’s death. And, frankly, it is a little unseemly to me. I’m not saying this is the case, but the perception left on most medical malpractice lawyers who usually handle these kinds of cases – rightly or wrongly – is that these lawyers filed suit so quickly because they could not wait to see themselves in the news. Is this a case that could have been settled for greater than the value of the case because the hospital wanted to explore quiet settlement alternatives? If so, how could these lawyers have possibly fully explored these avenues in two weeks?

Medical malpractice victims suffered a setback in Kentucky last week when the Supreme Court of Kentucky reversed the Kentucky Court of Appeals ruling adopting the “lost or diminished chance of recovery” in medical malpractice cases in Kemper v. Gordon. (This defense verdict was, however, reversed on other grounds because the trial court erred in excluding evidence that an expert has reached the opposite conclusion in another case.)

The facts of Kemper are tragic. A 38 year-old mother in otherwise good health presented at the emergency room with chest pain, shortness of breath, severe nausea and dizziness. For a year, these and related symptoms appeared. All were dismissed as anxiety or panic attacks. Finally, the woman was diagnosed with metastasized gastric (stomach) cancer. After her death, her family brought a medical malpractice lawsuit. At various points along the way to the jury, she settled with five of the six doctors that treated her. The jury returned a defense verdict.

At trial, Plaintiffs sought a jury instruction that the doctor’s negligence was a “substantial factor in causing the injury” to the decedent. The trial court rejected this instruction. The Kentucky Court of Appeals reversed and adopted the “lost of diminished chance of recovery” doctrine, pointing out that a growing number of states have adopted the lost or diminished chance doctrine, including Kentucky’s neighbors Illinois, Missouri and Indiana.

There are essentially two competing rules vying to be Kentucky law. The first is the rule we have in Maryland, the all or nothing rule. Under this rule, the compensable injury in the case is death. Under the lost of diminished chance doctrine, the compensable injury would be the lost recovery or survival from cancer.

You can drive a two ton truck through the difference. Under the former rule, there is no legal liability by a negligent doctor for any injury to the plaintiff unless the plaintiff has a 51% likelihood of survival.

The question is why should a negligent doctor be given a free pass just because she was not 51% responsible? How many billions of dollars do we spend in this country at our grocery stores buying organic food, and at pharmacies, health clubs, and doctors’ offices to improve our chances of avoiding even non fatal diseases by fractions of percentage points? If someone shaves off a 49% chance of your survival, would anyone be able to say that you were not injured? If you were told you had even a 1% chance of dying next year because of the negligence of someone else, how would you feel? Unharmed?

There are two things worth reading from this case. First, while I could not disagree more with the Kentucky Supreme Court, on page 8-10 of their slip opinion is a very articulate argument as to why public policy mandates keeping the 51% rule. (I respect good arguments, even those with which I disagree.) Second, in the Plaintiffs’ appellate brief – all 71 pages of it – Plaintiffs’ medical malpractice lawyer Ann B. Oldfather of the Oldfather Law Firm does a magnificent job of articulating the insanity, in law and in human terms, of the 51% rule.

In an even more egregious finding last year, the Maryland Court of Special Appeals found in a 2-1 decision in Marcantonio v. Moen that a reduction of 30 percent in the survival chances of a woman with cancer as the result of medical malpractice is not actionable as a matter of Maryland law.

The same conclusions divorced of human experience (and fundamental mathematics) in Kemper v. Gordon were applied in this malpractice case. In Marcantonio, the court’s logic is that your must have 51% decrease in the chance of survival to recover. So, if you have a 99% of survival and the missed diagnosis drops your chances to 80%, no claim can be had for your death even though there is a 95% chance your death was caused negligence. How on earth does that make sense? As Judge Timothy E. Meredith points out in the dissent, basic mathematical principles mandate a different conclusion.

The Maryland Court of Appeals granted certiorari in Marcantonio in April so we will hopefully soon find out whether they will provide a more logical and just law.