Maryland Injury Lawyer Blog

The Daily Herald in Chicago published an editorial yesterday that urges the Illinois Supreme Court to overturn the Illinois cap on non economic damages in medical malpractice cases. The article, written by the President on the Illinois Trial Lawyers Association (I guess they have not gotten the Association for Justice memo), does not cover any new ground opposing tort reform.

In fact, it highlights the one argument in opposing tort reform that I reject: that the cap does not lower malpractice premiums. While I hate caps on non-economic damages, I’m sorry, I majored in economics. (Okay, finance, but you get the point.) You cannot assert medical malpractice rates are not impacted by less exposure. Insurance rates are a function of exposure. It’s the first thing an actuary is going to punch into that computer. The fact that rates do not immediately rise or fall after malpractice caps rise or fall does not negate this causal relationship.

Continue reading "Medical Malpractice Caps, David Petraeus, Abraham Lincoln, and Martin Luther King: Watch Me Strain to Relate Them All Together to Close Out 2008" »

The Centers for Medicare & Medicaid Services recently published a report analyzing approximately 16,000 nursing homes in this country and assigned each a rating – from one star to five stars - based on such criteria as health inspections and staffing.

In a less prolific blow then the other shots to the head delivered in 2008 to the theory that an unfettered free market is always the best answer, approximately 27 percent of for profit homes surveyed were given one star, versus 13 percent of non-profit homes. At the top of the nursing home food chain, 19% of non-profit homes were awarded five stars, compared with 9 percent of for profit homes. From this pretty overwhelming data, it is hard to argue that for profit nursing homes provide an equal level of nursing home care to that of non-profit homes. While I am not sure what the profit to non-profit nursing home ratio is in Maryland, I don’t think this conclusion shocks a single Maryland nursing home lawyer. The vast majority of Maryland nursing home cases are against private, for profit nursing homes.

Continue reading "The Failures of For-Profit Nursing Homes" »

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The Baltimore Sun had an article on Sunday about the unfairness of the nature and the speed of lawsuits hospitals are filing against patients for unpaid hospital bills. The numbers are staggering: Maryland hospitals have filed 132,000 lawsuits in the past five years for unpaid bills, a third of which have been filed in Baltimore City District Court.

We have had personal injury and even medical malpractice clients sued by Maryland hospitals, often over incredibly small bills, even after the client has signed an assignment of funds to be paid out of their settlement. The collection lawyers hired by the hospitals are often running collection mills so getting a person on the phone typically takes an Act of Congress if you want to talk about a case.

I don’t know what the answer is. The hospital is entitled to be paid. But so many decent people are getting pounded, often at a time in their lives when they most need a break.

Baltimore is "teetering along the edge of a hellhole" because of its hospitable climate for personal injury lawsuits, according to a new study from the American Tort Reform Foundation.

If you are a lawyer handling medical malpractice, accident or products liability cases in Baltimore, this comes a little out of left field because while Baltimore is considered a more reasonable jurisdiction than most in Maryland to try personal injury cases, Baltimore plaintiffs’ lawyers hardly see Baltimore as a personal injury utopia. Baltimore makes up a large portion of personal injury cases cases in Maryland, which has a median jury verdict in personal injury cases is $12,813. In contrast, the median jury verdict in New York in personal injury cases is $287,628. There are a number of systemic reasons for this difference that have nothing to do with the judges or the juries in Maryland and New York. But still. Baltimore injury lawyers just don't have the impression that Baltimore has runaway juries. Is it a reasonable jurisdiction? Yes, particularly compared to many jurisdictions in Maryland. It is a personal injury lawyer's dream? Not by a long shot. But Baltimore’s place in the report is not based on malpractice, accident or products cases but on two specific types of cases: asbestos and lead paint.

But this is not because of judges or juries in Baltimore. It is because it is – and even more so, was – a blue collar town with a lot of workers who had exposure to asbestos. I realize some people find it frustrating that personal injury lawyers handling these cases ended up with “buy a baseball team” money. This American Tort Reform report plays to this sentiment, calling Baltimore “a welcoming host to a disproportionate share” of asbestos lawsuits and singled out Baltimore Orioles owner, Peter Angelos, calling him an "all-star plaintiffs' attorney with a specialty in asbestos cases." (Somehow, I doubt Angelos takes offense to this.)

I don’t think anyone other than a personal injury lawyer gets excited about a personal injury lawyer making billions of dollars in legal fees. But the reality is that the asbestos litigation was a once in a generation disaster. And Baltimore became a hotbed because of the industries we have here. The abject suffering caused by mesothelioma from asbestos has been lost in all of the attention being paid to the litigation.

Baltimore was also in a unique position on lead paint cases because Baltimore public officials got us out in front of the lead paint problem by testing kids much earlier than other cities which provided the data for lead paint lawyers in Baltimore to secure expert opinions. This means they were able to file a large number of cases before the insurance companies got wise and started putting lead paint exclusions in their insurance polices with landlords. Sure, there have been a number of good lead paint verdicts – including the $5.7 million verdict mentioned in the American Tort Reform report. But, look, trying a case on behalf of a brain injured child against a slum landlord is like shooting fish in a barrel. Moreover, the report neglects to mention that the jury’s award was cut to less that $1.3 million because of the caps on non-economic damages in Maryland.

Continue reading "Is Baltimore a Judicial Hellhole?" »

You can now follow the Maryland Injury Lawyer Blog on Twitter.

Pat Malone put on his website a closing argument he made in a Maryland medical malpractice case. In his final thoughts to the jury, he reminded the jurors of what I always remind jurors of when I'm delivering a closing: the memories of the victim will fade for you and for me, but this person is going to live with these injuries for the rest of his/her life.

In this Montgomery County medical malpractice case, the jury awarded $5.8 million for the wrongful death of a 47-year-old lawyer whose untreated mole turned into a skin cancer that spread to his brain. The jury awarded $3 million in non-economic damages, including $1 million each to Plaintiff’s widow and to his estate and $500,000 each to Plaintiff’s two children. That portion of the award will be reduced to $812,500 due to Maryland’s cap on non-economic damages in medical malpractice cases with at least two claimants. Plaintiff is expected to appeal arguing the unconstitutionality of Maryland’s cap on damages generally and the specific portion of the cap that applies to medical malpractice cases.

Wisconsin Lawyer (via Overlawyered via JuryVox) has an interesting article on the impact a juror’s political bent has on the amount of damages awarded in personal injury cases.

The study contained 476 mock jurors who identified themselves as either Democrats or Republicans. The jurors participated in mock trials for cases involving a personal injury, product liability, or medical malpractice and were divided into four basic categories of damages, which were determined based on how much they actually awarded during a mock trial: no damages, low damages, medium damages, and high damages.

The results indicated that being a self described Republican or Democrat was not predictive of the damage award. In fact, 22.3 percent of self-described Democrats awarded no money damages, while 20.8 percent of self-described Republicans awarded no money.

Does this mean Plaintiffs’ personal injury lawyers should ignore information, assuming the lawyers have access, about a juror’s party affiliation? No. In spite of this broad finding indicating that there are no differences between Democrats and Republicans, even the study does not suggest that party affiliation is not a variable to consider. Moreover, the study found that many stereotypical Republican attitudes from jurors do lead to lower verdicts. But the study highlights that nuanced personal views are more helpful in projecting damage awards than mere party affiliation.

Continue reading "Republicans and Democrats and Jury Awards: Does Party Affiliation Matter?" »

In an article published Wednesday in the New England Journal of Medicine, the cardiologist who sounded an early alarm on the later recalled Medtronic Sprint Fidelis leads warns that a soon-to-be-approved electrical component for implantable heart devices may prove dangerous to patients.

Dr. Robert G. Hauser of the Minneapolis Heart Institute argues that manufacturers and federal regulators have not adequately tested the new defibrillator connections, or leads, for potential short-circuiting problems. Like the Medtronic Sprint Fidelis leads, this new technology is viewed by the FDA as a change of an existing product and so does not require the same degree of testing that is required for a new product.

Continue reading "New ICD Technologies" »

We have added to the Personal Injury Lawyer Help Center a list of mediators in Maryland handling personal injury cases.

Our law firm uses this list when someone suggests mediation (or arbitration) just to get a feel of who is out there doing these mediations. Some of these mediators we have used before and highly recommend. Others on this list we specifically would not recommend (at least for plaintffs' accident and medical malpractice lawyers) or have never used and simply heard they conduct mediations. So, again, this is not a suggested list for plaintiffs' lawyers or defense lawyers. (I feel like I'm saying the same thing over again; I just want to be clear that we are not endorsing anyone on the list.)

Moreover, there is no criteria to be on this list. If you are a mediator or arbitrator in Maryland and you want to be added (or removed) from this list, email Claire@millerandzois.com with the subject heading "Maryland Arbitrator/Mediator." But please do not request to be added to the list if you have not mediated or arbitrated any personal injury cases in Maryland in the last few years.

Many of these mediator/arbitrator list are former judges. They have not been identified as judges for fear that we did not properly designate a retired judge.

The federal judges got their own financial bailout package. A judicial pay raise has been tucked into the proposed $14 billion bailout for U.S. automakers. This pay raise puts judicial salaries on a par with members of Congress. Senate Majority Leader Harry Reid apparently insisted that the judicial pay raise go into the automaker bailout package.

I'm fine with the raise. All of these judges are underpaid even with this raise. But sticking these riders on major pieces of legislation? We are just going about making laws the wrong way, right? Isn't this the stuff the Democrats said they were going to stop?

On Monday, the Maryland Court of Special Appeals decided Allen v. Marriott Worldwide Corporation, a Montgomery County slip and fall on ice case. The case sends a clear message to Maryland slip and fall lawyers: most ice slip and fall cases will not get to a jury.

This is just a small step forward – the court eradicates a potential factual distinction between black ice that cannot be seen by the naked eye and white ice. But after Morgan State University v. Walker, it is hard to expect a good slip and fall opinion from Maryland’s appellate courts absent compelling circumstance where the injury victim really had no choice – defined nearly literally – but to be where he or she was at the time of the fall.

You can find the opinion here.

Reuters reports that the family of a man killed in a stampede of frenzied Christmas shoppers on Black Friday filed a wrongful death lawsuit against Wal-Mart in New York.

This is a very public case. It is going to be hard to find a juror that has not heard about it. Many will also already know when they go to sit in the jury box that a wrongful death lawsuit was filed within three business days of the accident. What does that tell the jury? The jury's determination of negligence may hinge on analysis of facts and systems and procedures at Wal-Mart that could not have been discovered when the lawsuit was filed? Do the personal injury lawyers who are trying the case lose credibility with the jury when they know the lawyer filed a lawsuit without knowing all of the facts that are the foundation for their case? Could the lawyers have settled the case for more than fair value without filing suit because Wal-Mart did not want the publicity of a lawsuit?

I don't know the answers to these questions. What I do know is that the only harm in waiting to investigate the full facts of the case before filing a lawsuit is that the lawyers are delayed in making their big splash filing their high profile lawsuit. I'm not suggesting that is why a lawsuit was filed so quickly here because it could have been done for a number of reasons, including the insistence of the family. But these "5 minute after" lawsuits don't help the clients and also don't help the general public perception of personal injury lawyers or their clients.

Southern Maryland News has an article about a serious problem: the shortage of doctors in Southern Maryland. This is a good issue that needs attention. I’ve written about this on the Maryland Injury Lawyer blog in the past in a post titled “Doctor Shortage in Maryland? A Doctor in Southern Maryland Says There Is a Shortage of Doctors.”

Yet, bizarrely, the article focuses on medical malpractice insurance, profiling the ostensibly tragic story of Dr. Charlene Letchford who was forced by the “skyrocketing cost of medical malpractice insurance” to join a group of doctors at Calvert Memorial. Apparently, the bill “recently jumped from $11,000 to $16,000 a year.”

Now, is it possible - just possible - that this $5,000 was not the deal breaker? Are there other possible alternatives to explain why her practice was not successful other than the additional $13.70 she has to pay every day for malpractice coverage?

The article also points to the insurance company reimbursement rates which are increasingly defeating Maryland malpractice lawyers in the battle to be the archenemy of Maryland doctors. But it is troubling the extent to which doctors seek to bundle up all of their problems and place them at the doorstep of medical malpractice lawsuits.

The article includes the following bizarre quotes from Dr. Barry Aron, an OB/GYN in La Plata (Charles County):

Even if the case is dismissed the lawsuit still counts against you with the insurance carrier. It's a losing situation. Even if a doctor wins a case the insurance company still pays out money.

It's all a game to the lawyers involved. It's kind of a shame. The way the system works is that pain and suffering brings in a lot of money.

Continue reading "Let's Blame Maryland Medical Malpractice Lawyers for Everything" »

I took most of last week off for the Thanksgiving holiday. Instead of putting out a post this morning, I thought I would pass along what I have been reading over the past week, germane to personal injury law.

• EurekAlert has an article titled “Electronic Health Records May Lower Malpractice Settlements.” The premise of the article is that easy access to patients' medical history may result in fewer diagnostic errors, improved follow up of abnormal test results, and better adherence to clinical guidelines. Makes sense. But the title I think is weird. Lower malpractice settlements? How about saving lives and improving medical care and, oh, by the way, decreasing the number of medical malpractice settlements and verdicts?
• The Drug and Device Law Blog has a nice treatise (as far as blog posts go) on writing motions in limine. Good article that can be used by any lawyer preparing motions in limine. (You can also visit our website for sample motions in limine for personal injury lawyers.)
• Lawyer demands special treatment in the emergency room. (by way of Overlawyered). Certainly, anyone who threatens a lawsuit while in the emergency room is a tool. We all agree on this. I'll bet 100-1 the lawyer was not a medical malpractice lawyer and 20-1 he is not a personal injury lawyer.
• The Baltimore Injury Lawyer Blog reminds us in a litigation context of Abraham Lincoln’s advice that we should not write letters (or emails) when we are mad.
• They gave a bar exam in Maryland and everyone passed!
• The Wall Street Journal shockingly supports medical malpractice caps by encouraging the Illinois Supreme Court to uphold caps. Interestingly, I read elsewhere recently that President-Elect Obama voted in favor of caps on non-economic damages in medical malpractice cases while in the Illinois legislature. I was shocked that I did not know this. Read more about Obama on tort reform here.
• The Wall Street Journal Law Blog also has an interesting post on the mess created when people try to represent themselves which is a more frequent occurrence in the new economy.
• Even more from the Wall Street Journal: Minority Leader Mitch McConnell offers President-elect Obama a roadmap for ending the political war over judicial nominations. The article reminds me of something else I forgot: Obama voted no on John Roberts because of concerns over his "political" philosophy. (Eric Dinnocenzo wrote after this post was published a great blog post for TortDeform commentating on the Wall Street Jounal article.)
• Attention! Attention all defense lawyers! I know you are billing clients by the hour and all. But you do not need to depose everyone who has ever met or heard of the Plaintiff.