Maryland Injury Lawyer Blog

Last year, my Dad was in an auto accident where the Defendant admittedly ran a red light. Believing in his superhuman ability to drive an automobile, he did not have collision insurance on his car.

The insurance company, which shall remain nameless (Ameriprise), denied liability claiming that my father did not react quickly enough to avoid the accident Ameriprise's theory of the case was that Dad is 71 years-old and therefore must have reacted too slowly to avoid the accident. What Ameriprise didn’t know is that my father was driving home from playing three grueling sets of tennis in the summer heat with me. I'll bet money he can react better than the Ameriprise adjuster that denied the claim.

So I sent them a draft complaint and discovery in the case and they quickly changed adjusters, accepted liability, and threw in $500 for his injury claim even though he never sought any medical treatment (which we never would have asked for had they simply paid on the property damage claim).

But the whole thing got me to thinking about the incredible disadvantage property damage victims find themselves facing in these situations. No halfway decent accident lawyer is going to consider getting into a property damage liability dispute case. So property damage victims are forced to file a lawsuit on their own. In Maryland, if the claim is over $5,000, there are procedural requirements that are going to slip up the vast majority of property damage claims made by plaintiffs.

I do not have any remedy to this problem but I did put together a list of tips for those that find themselves in a similar situation handling your own property damage claim without a lawyer that you can find by clicking on the link in this paragraph.

The News-Democrat (St. Louis and Southwestern Illinois) has a story about accident lawyers trying to get access to car and truck accident police reports in an effort to obtain clients. These personal injury lawyers look through these police reports on automobile accidents, get the names and addresses of people who have been injured and might have a lawsuit, and then write them a letter soliciting their case.

"Insurance companies can immediately contact people after an accident, and people should have the option to know what their rights are, if they want to talk to a lawyer," said Michael Hupy, a Milwaukee accident lawyer who uses this technique to attract new clients. "Many people still think you have to pay a fee to talk to a personal injury lawyer."

Is this ambulance chasing or, as Mr. Hupy suggests, simply a means of giving personal injury lawyers access equal to that of the insurance companies to accident victims?

While I agree with everything Mr. Hupy’s says, I’m still going to go with ambulance chasing. When accident lawyers send these cold call letters, it forever alters the perception of personal injury lawyers and their victims in the eyes of its recipients. This bad perception of accident lawyers as ambulance chasers is also the fuel for tort reform.

I wrote at one point, “I’m not necessarily saying it should be illegal.” But upon further reflection I do think there should be an ethical rule against soliciting accident victims by direct mail because you found their name in an accident report. In fact, I could argue that the rule to not advertise in a manner which would degrade his or her dignity as a lawyer already applies these letters.

When I first started practicing law, I thought some of the attorney ethical rules were mumbo jumbo because they are a little self aggrandizing. I have never thought lawyers were superior to plumbers, car mechanics or Indian chiefs. So why should lawyers have different rules than anyone else? The answer is because the public perception of lawyers is always on a tight rope. Personal injury lawyers are selling injury victims down the river when they do not adhere to the highest ethical standards.

Overlawyered links to a post called Munchausens by Attorney. The blog, Throckmorton, is written by a doctor who says he is a “mere foot soldier stuck in the medical-legal battlefield.” I don’t know what this means, either. But it is a pretty decent blog.

The post deserves a link because the title is so funny. (Warning: do not read the comments to the post unless you are looking to lose a few IQ points.)

But this post is about MY reaction to the blog. When I hear about a lawyer doing something awful, I think to myself, “Oh my, I hope someone catches and stops the person who does it.” I think that is the response most lawyers have. But when doctors hear about a doctor habitually committing medical malpractice, their instinct is to defend the doctor and attack the accusers (not the victims, but their medical malpractice lawyers).

Maybe being a doctor is more of an intrinsically self-identifying profession because at the core, doctors help others in a more direct way than almost any profession, and this makes them more loyal to fellow doctors. In contrast, a lawyer just moved into my neighborhood. He has three kids. I identify with him more because he has three kids (like me) than I do because he is a lawyer. If you see a tombstone that mentions the person was a doctor, I don’t think you would be surprised. But you would find the mention of someone being a lawyer a little odd, right?

So that all makes sense. But here’s the thing: according to the federal government, medical malpractice is killing like 100,000 people a year and causing serious injury to countless more. So at some point, regardless of where you are on medical malpractice lawsuit reform, doctors need to spend less of their energy firing out at medical malpractice lawyers and insurance companies and focus more of their energy and attention on patient safety initiatives.

I received this email from a personal injury lawyer in Maryland this morning:

I have an MIA complaint involving Colossus. Allstate offered the number provided by Colossus and now, of course, refuses to produce any Colossus manuals, etc. Do you have some useful Colossus materials?

I don’t. Maryland’s bad faith law is new and it makes relevant lines of inquiry from Maryland accident lawyers that before would have been completely irrelevant including, as this email suggests, how Allstate values first party uninsured or underinsured accident cases. If any lawyer out there has anything that might be of use that I could pass along, will you drop me an email at ronmiller@millerandzois.com?

As a side note, the American Association for Justice ranks Allstate as the worst insurance company in the country (for consumers, at least). That may be true nationally, I don’t know. But I don’t think it is true in Maryland. I’d rather draw Allstate in a personal injury case in Maryland than I would a lot of other insurance companies. Name names? Sure, why not? It is Friday. I would rather have Allstate then Progressive, MAIF, State Farm, Unitrin, or GEICO.

GEICO is a new addition to my "better than Allstate list." At some point along the way in the past three years, GEICO stole some pages out of that McKinsey & Co. report that told Allstate to put on boxing gloves and added a few pages of their own. Their in-house Maryland lawyers (Besok & Mullen and John Dahut & Associates) are good lawyers that are easy to deal with but we are filing too many lawsuits in GEICO cases that should have settled before a lawsuit was filed. The message for Maryland accident lawyers, as always: if the offer is not fair, encourage your client to file a lawsuit. Too many personal injury lawyers choose the path of least resistance of pushing to settle the case even when the settlement is not fair. This is the reason why the boxing gloves paradigm works.

Continue reading "Colossus and Allstate" »

In his blog the Art of Advocacy, Baltimore lawyer Paul Mark Sandler suggests a counter to the slippery slope argument: "The 'slippery slope' argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way."

I like this metaphor. My problem with slippery slope arguments, is that in real life, slopes are rarely slippery. Looking at this same metaphor through a different lens, George Will wrote earlier this year that life is lived on a slippery slope: taxation could become confiscation; police could become gestapos. But the benefits from taxation and police make us willing to risk that our judgment can stop slides down dangerous slopes.

Believe me, I know plaintiffs' lawyers have made the slippery slope argument as well. I have myself. But it seems like more of an argument I hear from defense lawyers.

The Baltimore Injury Lawyer Blog last week published a comment written by a State Farm in-house counsel, issuing a rebuttal of sorts about a trial John Bratt tried against State Farm last month.

John's verdict in this case was 8 times the State Farm offer. State Farm's lawyer argued in his comment that it was not a big win for us because the jury only gave the plaintiff her medical bills. The crazy thing is that we agree. John did not view it as a big win, he asked for and was hoping for a lot more. But if we get a verdict that is 8 times the State Farm offer and both our lawyers and State Farm's lawyers think they won, what exactly does that say about the fairness of their offer? I think it calls into question the accuracy of the evaluations State Farm is making in Maryland accident claims.

The message, as always, for Maryland accident lawyers with claims against State Farm and other like minded insurance companies: try more cases.

I read in the paper today that Dale Adkins III and Emily C. Malarkey, both with Salisbury, Clements, Bekman, Marder & Adkins in Baltimore, filed a wrongful death medical malpractice case against an OB/GYN in Salisbury.

We also have a medical malpractice case pending against the same doctor. In April, a jury in Baltimore found this doctor negligent in yet another medical malpractice case. We have previously reviewed and rejected another claim against this same doctor, not because medical malpractice could not be established but because the damages – while significant – were not of the magnitude that would make a medical malpractice lawsuit.

I’m not naming the doctor because our goal with this blog is not to embarrass people or invade their privacy. I do not name plaintiffs or defendants unless they are a company or hospital. And I’m told this doctor appears to be a decent guy. But this doctor underscores that high malpractice rates are not from medical malpractice lawyers filing frivolous lawsuits. Instead, the problem is that 3% of doctors in Maryland are responsible for half the medical malpractice payouts (data from earlier this decade but I suspect it is still holding true). If these doctors are [fill in your own phrase for politely asked to stop treating patients], malpractice premiums in Maryland would plummet.

If a lawyer is not effective in trial, there are lots of other productive things the lawyer can do to make a contribution in the field of law. Doctors who shouldn't be treating patients do not need to get a job a Burger King. There are invaluable things that many doctors do who don't treat patients. We need a plan to transition a small minority of doctors into hopefully a related line of work where they can be productive but where they cannot harm patients.

It is trite but it true: anyone can make a mistake. But how many is too many?

Last month, the Judicial Panel on Multidistrict Litigation (JPMDL) created MDL for the 11 NuvaRing lawsuits pending in federal court. Discovery for federal NuvaRing lawsuits – both pending and future - will be centralized for discovery purposes in the Eastern District of Missouri before Judge Rodney W. Sippel. More NuvaRing lawsuits are pending in New Jersey after plaintiffs defeated defendants’ efforts to remove all NuvaRing lawsuits to federal court. (Read more on New Jersey NuvaRing lawsuits.)

These NuvaRing lawsuits involve blood clot-related injuries to women such as pulmonary embolisms, strokes, heart attacks, and deep vein thrombosis (DVT). Because NuvaRing is a birth control device, many of these injuries are occurring in young woman who are rarely at risk for non pharmacological induced blood clots.

The challenge many products liability lawyers face in drug and medical device injury cases is that the patient population using the drug or device is more likely to suffer from the injury allegedly caused by the drug. Many patients on Seroquel, for example, are more likely to have diabetes because Seroquel is often prescribed for older patients (Seroquel is ubitiquous in many nursing homes). These patients are more likely to have diabetes than the general population. So while a plaintiffs’ lawyer might be able to show that Seroquel causes diabetes, it might be a struggle to show that Seroquel caused diabetes in that particular patient.

The Prozac suicide cases are an even better example. Eli Lilly argues that many on Prozac are more likely to commit suicide with or without the Prozac so we should not be surprised that patients on Prozac might commit suicide in greater numbers than the patient population. With respect to specific causation, the reason the patient was put on Prozac in the first place is claimed – sometimes for good reason – as the real etiology of the suicide.

Many of the NuvaRing cases are not going to have difficulty specifying causation problems because women who are on birth control are generally – although obviously not always – relatively young. Plaintiffs’ lawyers handling NuvaRing cases are going to have an easier time proving specific causation if general causation is established.

Judge Edward A. DeWaters Jr. died on Saturday of pancreatic cancer yesterday. Judge DeWaters was appointed in 1972 and retired in 2001. Judge DeWaters was at one time the chief judge for both Baltimore County and Harford County.

I never had a case before Judge DeWaters. My Dad, who grew up in Bel Air near Judge DeWaters, attended a high school reunion on Saturday in Bel Air where the dominant topic was obviously Judge DeWaters' death. He appears to have been well liked respected not only during his 29 years as a judge but throughout his entire life. My Dad, who was one year older than Judge DeWaters, commented that of anyone he knew growing up, Judge DeWaters was the person he would have be the least surprised to become a judge.

A Mass of Christian burial will be offered at 10 a.m. Thursday at St. Stephen Roman Catholic Church, 8030 Bradshaw Road, where he was a member.

I was tagged by the Drug and Medical Device Blog with an Internet meme (I don’t know what this is but I get the idea) asking Maryland Injury Lawyer Blog to (1) to identify five non-law blogs that we find to be interesting, and (2) to tag five lawyers to do the same thing.

I’m glad to be included by the Drug and Medical Device Blog. I’ve made fun of this blog on many occasions because of its “ultra partisan” view on drug and medical device injury litigation. How do I know that their views are uncompromisingly pro-pharmaceutical company? Because I read every single post they write. Anyone involved in products liability litigation would be foolish not to read this blog. It is the most well-written and informative blog discussing drug and medical device litigation by a landslide. It is also – to the extent such a blog can be – funny and entertaining, which makes this blog all the more maddening to me: anyone smart and funny should be obligated to see the world though the same lens that I do. This should be a rule.

These are the five non-legal blogs I like:

The Huffington Post – I do not like Michael Moore, even though we largely agree politically, because I think he is knee jerk closed minded in his view. I think the Huffington Post falls in this trap far too often, as well. Yet I find myself sneaking over to read it every day since Governor Palin was nominated. I’m like the guy looking at "The Kramer" painting on Seinfeld: “It hideous, yet I can't turn away!"

Deadspin – An outside-the-box sports blog that presents the sports news of the day with colorful and funny commentary

The Daily Dish – I have mixed feeling on Andrew Sullivan’s views of the world but I just really enjoy his writing. (Same goes for George Will, even though I can’t understand half of what he writes.)

The Severna Park Health & Fitness Blog – I have a horse in this race but Club One Fitness' blog is good on health and fitness and local Severna Park news (where I live).

The Anonymous Lawyer Blog – You might argue that this is a legal blog, but it’s fiction, so I’m going to include it. The blog premise is that the hiring partner of a large law firm blogs about his day at the office. The author, a recent law school graduate, has lost interest in the character so there are no new posts but if you have never read it, you can jump in the archives. If you have ever done defense work at a large firm, you will almost certainly find it funny.

The Five Blogs I Tag:

The Illinois Trial Practice Blog – Evan Schaeffer keeps this discovery and trial tactics blog on message but hopefully he will indulge us by playing along.

The South Carolina Trial Law Blog – Dave Swanner’s blog on running a law practice and maximizing the value of personal injury cases

Overlawyered – I disagree with Walter Olsen on a lot of issues but this is a quality blog that makes many good points and points out abuses to the legal system that we all need to be concerned about.

The Baltimore Injury Lawyer Blog – A new Miller & Zois blog written by John Bratt that I think is already one of the best trial practice blogs out there. Check it out for yourself.

Maryland Injury Lawyers Blog – This is Goldberg, Finnegan & Mester’s blog on Maryland personal injury law. Sure, they basically stole our unique, outside-of-the-box blog name by adding an “s” but they are our friends and they are really good accident and malpractice lawyers.

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years-old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are incredibly valuable years. But these numbers, regrettably, demonstrate that there is some logic to their thinking when it comes to how juries value wrongful death cases.

Approximately 62% of the non motor vehicle wrongful death claims in this study are medical malpractice and wrongful death claims – particularly with older patients - so it is reasonable to assume that many of these wrongful death verdicts were compromise verdicts.

Related Posts:

How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)

Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)

Valuing Cases in Virginia (average settlements and verdicts in Virginia)

Personal Injury Verdicts Across the Country (personal injury verdicts in your state)

Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)

Value of Wrongful Death Motor Vehicle Accident Cases in Maryland (average settlements and verdicts)

These are some personal injury related links from around the country this week:

The Burlington Times News has an article about North Carolina’s decision to require North Carolina doctors to report all medical malpractice payments greater than $25,000.00. These results will be released to the public. The article notes that only 4% of the doctors in North Carolina in the last seven years have made malpractice payments.

Legal Newsline.com has an article on how medical malpractice damage caps in Texas have decreased malpractice premiums. As I have written before, in spite of what a lot of medical malpractice lawyers have argued, this cause-and-effect relationship is textbook economics. I think it is also true that the quality of patient care in Texas is falling dramatically because there are no repercussions when a doctor seriously harms a patient.

The Baltimore Injury Lawyer Blog has a post on John Bratt’s recent auto accident trial in Montgomery County.

Pharalot reports that the FDA will now be compile quarterly a list of drugs that have been identified as having potential safety concerns. Can anyone argue this is a bad idea?

The new Maryland Accident Lawyer Blog has a post on the Maryland Court of Special Appeals’ recent ruling in a wrongful death car accident case that took the lives of a man and his three children.

The Illinois Trial Practice Weblog has a post about the top 10 rules of evidence every lawyer must know. (Top 10 lists are irresistible.) The same blog also has a good post on videotaping your opponent’s deposition.

Does Sarah Palin support the idea of jury nullification?

The Baltimore Sun reports that the FDA may not be properly screening drugs for the potentiality of the medications inducing suicide. Plaintiffs’ product liability lawyers who have been looking at these issues for the last 20 years are Captain Renault-like stunned to learn that the FDA (and the drug companies) has not properly focused on the risk of drugs – particularly antidepressants – and suicidal thoughts and ideations.

Finally, the Torts Prof Blog continues to put together a comprehensive list of personal injury links from around the country.

The Mass Torts Blog, another defense lawyer blog brought to you from our friends at Dechert, posts on Labor Day about medical screening in mass tort cases. The allegations are basically that plaintiffs' product liability lawyers are committing fraud when screening clients. Read the post for yourself and tell me that is not a fair summary of what the post alleges.

It would be nice to have a more moderated voice coming from Dechert, a fantastic international law firm, as opposed to the the defense lawyer version of Ann Coulter. But if what the Mass Tort Blog is saying is correct - that a large number of plaintiffs who accepted settlements in the asbestos, silica, fen-phen, silicone breast implant, and welding fume litigations were fradulent, manufactured claims - where were the defense lawyers to protect the defendants from this fraud?

Obviously, it was easy to make this determination, as Cardozo Law School Professor Lester Brickman had done in his study, which was relied upon in the Mass Torts Blog post. Were defense medical examinations a condition of settlement? Did they just blindly trust the plaintiffs' lawyers? If this really is the case, shouldn't we infer that all of the defense lawyers who defended these cases committed legal malpractice?

Before a posse of drug and medical device companies form to file a lawsuit against all of these defense lawyers for legal malpractice (including, ironically, Dechert) for failure to properly defend their clients, let me save them: this contention is nonsense. The reality is that the defense lawyers sized up these cases, reviewed medical records, and made the appropriate decisions as to who should be included or excluded. The notion - that defense lawyers allow systems to exist where they just have to trust, without safeguard, the plaintiffs' lawyers and the doctors they hire to evaluate cases - lacks any foundation, notwithstanding Professor Brickman's 177 page polemic.

By the way, I wonder what Professor Brinkman’s null hypothesis was coming into this article. Does his CV give it away at all? Jury consultant David Ball suggests not presenting a case with the language of an advocate in an opening statement until you have earned the confidence of jury. On page 14 of his 177 page paper, Professor Brinkman says, “Thus, screenings coined money as surely as if the lawyers had access to the government printing press.”

I don’t think Professor Brinkman has read David Ball.

The Baltimore Sun reports that car insurance companies in Maryland are resisting the Maryland Automobile Insurance Fund's (MAIF’s) car insurance rate-lowering proposal because MAIF’s plan to lower rates puts the private sector at risk. After a hearing in Baltimore, Maryland Insurance Commissioner Ralph S. Tyler delayed ruling on some insurance companies’ objections to MAIF lowering their rates.

Let me get this straight. Car insurance companies cannot compete with a non-subsidized state run agency. Was Marx on to something? No, we all saw the Beijing Olympics; capitalism seems to be working just fine.

Is this really where we are? Private car insurance companies need protection from competition by MAIF? I’m not sure what the private insurance companies’ arguments are on this issue. The only argument offered by the Baltimore Sun was provided by Hal S. Katz, president of Baltimore-based Interstate Auto Insurance (IAICO). Also specializing in writing Maryland car insurance polices for drivers that have a history of trouble, IAICO complained that MAIF does not enforce its requirement that it provide car insurance only to drivers who have been rejected by two private companies.

My response to IAICO is, so what? Why can’t IAICO compete with MAIF on a level playing field without having to run to Ralph Tyler to complain that MAIF’s prices are too low? The average MAIF policy now costs $2,400. It is not like they are giving car insurance away. Either IAICO is not running their business very well, or - and this is the more likely explanation - it does not want any competition to interfere with its gouging of Maryland drivers with shady driving records or credit scores, often the people that most need the lower rates that come with competition.

Also, if MAIF has a $170 million surplus, as the Baltimore Sun reports, would it be a bad idea for MAIF to stop writing 99% of its policies at 20/40/15? If MAIF is a quasi state owned company (MAIF is not even an insurance company as defined by Maryland law), couldn’t it be in the best interest of MAIF policy holders and Maryland accident victims for MAIF to raise its policy limits to 30/60/15, at least protect its policyholders from district court (non jury trials) where the jurisdictional maximum is now $30,000?

While I’m spending MAIF’s $170 million surplus, here’s a quick plug for the enemy - the accident lawyers MAIF hires to defend its car accident cases. One of the big problems we have with MAIF, as John Bratt points out in the Baltimore Injury Lawyer Blog, is that they offer their small insurance policies too late in many cases to protect their insureds under Maryland's pay-to-play statute. Maybe if these lawyers – many of whom are fine personal injury lawyers – were paid a little more, they might have the time to figure out from the beginning whether it is an excess case where the policy should be tendered. It couldn't hurt. Even more importantly, MAIF could spend the resources to figure out which auto and truck accident cases are policy cases from the beginning. This is an investment that would actually save MAIF a ton in lawyers’ fees.