Maryland Injury Lawyer Blog

If you have any suggestions for links, send me an email, I'm all ears. Maryland specific links are at the bottom:

• The New York Times reports that General Motors will continue to have responsibility for products liability lawsuits filed against it after bankruptcy. Lawsuits filed against General Motors before the bankruptcy will be dealt with in bankruptcy court. In other words, clients whose product liability lawyers that had their act together and filed suit are going to have a slim chance of being paid. Slackers (or products’ liability lawyers who saw this coming) who delayed moving forward in filing their lawsuits will be rewarded. It is what it is and product liability lawyers with lawsuits to be filed have to be pleased that their claims will not be terminated by the bankruptcy proceedings. But still.
• The Washington City Paper (via Overlawyered) has this great quote for a guy starting a website for lawyers seeking clients for the D.C. metro train crash: "What else can you do, a young guy like me? I don't want to do porn [websites]." Dare I suggest this is a false choice? There has to be a third option after porn and train wreck chasing, right?
• This gets a nod just for the title: “Michael Jackson: The Mother of All Malpractice Suits.” I always thought that had Tiger Woods’ surgeon committed malpractice on Tiger Woods during his Lasix surgery, that would have been the mother of all malpractice suits. It would have been a billion dollar medical malpractice claim. Speaking of Michael Jackson, the National Law Journal says that Jackson’s history of lawsuits will not end after his death. Which is pretty much exactly what you would expect.
• Lawyer’s PowerPoint presentation that his speeding ticket should be excused because he could not feel the speed in his BMW fails, defying the Vegas odds.
• Joe Jureviciusiles files a medical malpractice lawsuit against the Cleveland Browns team doctors (and the team). Given the number of infections the Cleveland Browns have had, it is hard to be surprised that someone would bring a lawsuit, particularly a recently cut player.
• Military medical malpractice lawsuits could be on the horizon. Why shouldn't the military compensate soldier victims?
• Roche withdraws Accutane. The Drug and Medical Device Blog says that there is no “scientific evidence” that Accutane causes IBD (inflammatory bowel disease) yet juries keep awarding millions of dollars. How does one logically explain this theory? American juries just keep getting fooled over and over again? Is this just a crazy mathematical fluke or are people just pretty stupid? Do we need smart people to decide complex cases? How about voting for president? That seems like a complex issue too, right? If Sarah Palin wasn’t so reflexively choosing business interests at every turn, I know she would have my back on this one.
• Is being the first to file a lawsuit the smartest approach? John Bratt offers his thoughts.
• The Maryland Court of Special Appeals rules in an uninsured motorist pedestrian accident case.
• Lord & Whip lawsuit to proceed. What a messy breakup.

Metro Verdicts Monthly graph this month is the median verdict and settlement value of wrist fracture cases over the last 22 years. The average settlement/verdict in Washington D.C. is $105,000. Maryland is less than half that: $50,000. The average settlement/verdict in a wrist fracture case in Virginia is $52,583.

Maryland jury verdicts in series personal injury cases are generally higher in the District of Columbia. Again, I don't know the methodology of how MVM gets its numbers. If they rely on personal injury lawyers reporting that data - which I do not think they do - then that could possibly skew the data as could a lot of other things that only a statistician could find. Particularly since Metro Verdicts includes settlements in their statistics, it is hard not to suspect that data could be skewed. The only way auto accident settlements (as opposed to malpractice settlements that have to be reported) get on the radar screen is if you call Metro Verdicts and tell them you settled a case. But there are few sources of verdict and settlement statistics in personal injury cases so it is hard not to find data like this interesting. I would love to see a jurisdiction comparison of Baltimore City and all of the counties in Maryland.

Notwithstanding the last two blog posts, I have found reason #394835 why I want my kids to be doctors instead of lawyers: an on-line law school course graduate has been made a new member of the Massachusetts bar.

This new lawyer's picture is in the Boston Herald story. He looks like a great guy and I give him credit for fighting the system, fighting his case to the Massachusetts high court, and becoming a lawyer. That's great and he will probably be a good lawyer. But can you imagine going to a doctor who says, "Oh, yeah, I got my medical degree on-line while I was working as a computer consultant." And what would that make you think about other doctors?

I have not read the opinion. But I cannot imagine why having a rule that only graduates of ABA-accredited laws schools can take the bar exam is a bad idea.

Ron Miller has written an article for Southern Maryland Online titled, "Is There a Doctor in the House?" Mr. Miller argues that Maryland needs medical malpractice reform if we are going to reform our health care system and that we have to make medical malpractice lawsuits in Maryland "less attractive" for Maryland medical malpractice lawyers. Mr. Miller's bright idea is letting the hospitals decide if a mistake has been made. And then they will pay you and apologize. Soon, and this is really what the article says, we might not need medical malpractice insurance in Maryland anymore.

Perhaps I've gone completely mad. Maybe. But hospitals' risk management will decide whether there is malpractice and then appropriately pay the victims? I have not gone that mad. This article is written by bizarro Ron Miller, to coin the Seinfeld phrase, a "conservative blogger and activist, former and future candidate for the Maryland Senate, and communications director for the Calvert County Republican Party." I'm sure he is a nice guy. But politically, and particularly on this issue, he is the anti-me. And I don't think this article even offers the best arguments for those arguing for tort reform in Maryland medical malpractice cases.

From this, a serious question has to be asked: who is the most famous Ron Miller in Maryland? For conclusive, unassailable proof, I turn to Google. So I Googled "Ron Miller Maryland," and "famous Maryland Ron Miller." It would be indiscreet to publish the results of this search. But in an unrelated story, your Ron Miller will be signing autographs at Einstein's Bagels in Severna Park on Saturday between 9:00 a.m. and 10:00 a.m.

According to Harvard University economist Amitabh Chandra, annual jury awards and legal settlements involving doctors amount to $3.6 billion, a drop in the bucket in a country that spends $2.3 trillion annually on health care.

Medical malpractice reform advocates claim that this does not account for defensive medicine. They rely in part on 2005 JAMA study that found that over 90 percent of doctors admit to practicing defensive medicine. President Obama’s speech to the AMA last week certainly led them to believe that he agreed that we need to “scale back the excessive defensive medicine” in this country.

Let us not pretend that there is no defensive medicine in this country. But we have to take out of the medical malpractice equation three kinds of defensive medicine: (1) tests and evaluation that are actually good for the patients, (2) additional treatment that is motivated, not by fear of lawsuits, but by fear of harm to the patient, and (3) patient induced defensive medicine (i.e. patient seeks tests doctor would not necessarily recommend).

Continue reading "Medical Malpractice Lawsuits: How Strong Is the Link to Defensive Medicine?" »

The Courier-Journal in Louisville, Kentucky has an article on an amazing lawsuit in Kentucky in yet another derivative claim of the fen-phen litigation. Plaintiff claims that her lawyers told her that her echocardiogram showed that her heart was "like a tire that might burst” as a result of the use of fen-phen.

The claim made by a former paralegal of the law firm handling the case is beyond stunning: medical tests were altered to show more heart damage than expected and destroyed test results that were not consistent with plaintiffs’ lawyers’ theory of the case.

The law firm did what a lot of plaintiffs’ law firms do in product liability cases where there is a chance of significant recovery: they offer plaintiff a medical test at no charge which is characterized as an independent medical exam. In this case, the test was an echocardiogram.

As many good stories do in 2009, this one also involves sex and (audio) tape. Plaintiff’s lawyer is accused of telling his client that she needed to “spend some time on [her] back” with him (later in the conversation he said he was kidding), that he wanted to touch her breasts, asking her how many people she had had sex with, and the like. Plaintiff taped the conversations because – get this – her husband did not believe her. The article gives the impression that Plaintiff never really voiced objection to these comments.

Who do you root for in a case like this? Not the lawyer who, on his best day, acted inappropriately in the case. Bar counsel in Kentucky has put on hold its evaluation until after the case, but eventually these claims are going to be heard. But it also hard to root for a Plaintiff who claims the lawyer and his law firm damaged her "mentally and emotionally" and "caused her a great deal of humiliation.” Exactly how much money are allegations like this worth? There is no question that the allegations are very serious. But there is an incredibly important difference between making allegations of serious misconduct and allegations of serious injury.

A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts' highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff's police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff's theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a "special relationship" the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.

The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to "an innocent third-party bystander" was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.

Continue reading "New Massachusetts Opinion on Duty and Foreseeability" »

The Wall Street Journal reports that AIG is playing hardball with Flight 1549 claims from passengers that suffered injury or lost property (cell phone, i-Pods, etc.) when their plane landed in the Hudson River. Their thinking? An AIG spokesman told the Wall Street Journal that bad publicity is better than no publicity, which explains AIG's thinking with those bonuses. Okay, I just made that last part up.

Given the reputation of AIG these days, these might have been smart claims to pay. But AIG really has no obligation to pay them because there is no evidence that I've heard that its insured, US Airways, was responsible for the accident. The geese are not responsible.

US Airways did a good thing paying each victim $5,000 after the accident to cover their immediate needs. That is just smart public relations. AIG would be wise to look at the big picture as US Airways did. But they are not obligated to do so. And my plea to every lawyer in the United States: please don't file a lawsuit in these cases to get your name in the paper.

I'm back from the Maryland State Bar Association convention in Ocean City. What? You did not see me there? Okay, I never actually made it to the convention. But the brochure looked nice.

Anyway, I'm back and these are the links of interest I found this weekend:

• Maryland law firms are hiring. Really. And it was a good week nationally for (the relative absence of) law firm layoffs. Just call it a comeback.
• The “drug made me do it” defense is being used again in a New York case where the defendant alleges Zoloft caused him to assault his girlfriend. My friend Andy Vickery tried this Zoloft defense unsuccessfully in a much publicized criminal case in South Carolina. If Andy can’t pull it off under what on the surface appears to be much better facts, I doubt this guy will.
• Justinian Lake writes about a Texas Supreme Court opinion that goes out of its way to attack a very well respected plaintiff’s lawyer.
• A Tennessee malpractice lawyer tries to rile up jurors into changing their mind after multi-million dollar malpractice verdict.

Continue reading "Personal Injury Links: Post Vacation Update" »

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post | Comments (0)

Posted In: General

From President Obama speech today:

Now, I recognize that it will be hard to make some of these changes if doctors feel like they are constantly looking over their shoulder for fear of lawsuits. Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. And while I’m not advocating caps on malpractice awards which I believe can be unfair to people who’ve been wrongfully harmed, I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.

A lot of medical malpractice lawyers and malpractice victims breathed a sigh of relief. I'm starting to feel like my post last week was a bit reactionary.

President Obama will speak to the American Medical Association on Monday. What's on the agenda of the President? There is speculation that he will support some form of medical malpractice reform to throw doctors a bone in his health care reform package. Whether he supports hard reform (caps) or soft reform is anyone's guess right now. (SEPTEMBER 9, 2009 POST SPEECH UPDATE HERE)

Shocking? Biting the hand that feeds him? As I wrote back in December, Obama's support of malpractice caps in Illinois was an incredibly overlooked clue to Obama's receptivity to tort reform. No one was paying attention because every personal injury lawyer assumed Obama was a better choice than the other guy.

I voted for Obama and I would do so again: malpractice tort reform and other issues of importance to personal injury lawyers is just one issue of many that are important to me. But would medical malpractice lawyers have been better served with McCain in office? McCain would not have moved 60 Democrats on this issue. Obama might be able to do so. Remember, only the zealously anti-communist Nixon could go to China. This is obviously a little bit of hindsight analysis but maybe support of Obama was the wrong play for personal injury lawyers. Democrats rolled their eyes when President Bush called for malpractice caps. Obama's political position rightnow is such that it is hard for Democrats to roll their eyes at much of anything he supports right now.

I still do not think malpractice reform makes it past the Senate and I think Obama will lose his base in Congress on health care reform if he pushes substantive medical malpractice reform which probably suits President Obama just fine. Obama causes no harm to his base and the AMA and its progeny will have a lot less anti-Obama venom in 2012. Of course, I'm just speculating on all of this but if politics is a chess match, Obama always seems three moves ahead.

I like that Obama is willing to flip on his base. I just think he is wrong in thinking that malpractice reform is what this country needs.

Post Script (5 days later): Okay, I completely overreacted and got bad information from the media and my "inside sources" on where Obama is on malpractice tort reform. Here is the text of Obama's speech to the AMA with respect to medical malpractice.

Post-Post Scrip (3 months later): We are now post-Labor Day and the health care battle has waged on at the exclusion of every other domestic priority we have now. My first reaction may have been correct on where Obama is on tort reform. Some commentators are suggesting that President Obama is ready offer up caps on medical malpractice cases. You can find the argument as to how and why Democrats may flip on trial lawyer - its traditional benefactor - and why I think this will not happen here.

The Indiana Supreme Court issued a troubling opinion last week in Stanley v. Walker, ruling that the discounted price actually paid for medical care by insurance is admissible as evidence.

Ah, what about the collateral source rule? Well, the Indiana Supreme Court thinks they have us covered. The court says this evidence can only be introduced to the extent that discounted amounts can be introduced without referencing insurance. I dissent.

This is an appeal of an accident case of what was probably a decent verdict: $70,000 on $11,570 in medical bills (does not appear to be a serious injury case, but the opinion is not clear). His medical bills actually received by the health care providers were adjusted by write-offs negotiated by his insurance company, Anthem Blue Cross Blue Shield, to $6,820.

Defendant’s lawyer agreed that he could not ask questions about Plaintiff’s collateral source rule, which, as I understand it, is similar to Maryland’s rule. But the defense lawyer did argue that neither the Plaintiff nor his insurance company was responsible to pay the written-off sum, and accordingly, the write-offs did not constitute an insurance benefit under Indiana's collateral source statute.

From this creative argument – which I applaud on either side of the v - Defendant’s lawyer contended that he could introduce evidence of reductions as indicia of the actual expenses. Plaintiff’s lawyer’s response – that carried the day below in the trial court and to the Indiana Court of Appeals – was that because collateral source payments were insurance benefits that Plaintiff paid for, they are not admissible. Plaintiff claims that the Defendant should not be the beneficiary of Plaintiff’s bargaining power through the insurance companies because – again this bears repeating – he was the one who paid the insurance premiums for the last 50 years, not the Defendant (okay, I’m making up the 50 year thing – you get the point).

The Indiana Court of Appeals cited Griffin v. Louisiana Sheriff’s Auto Risk Association, 802 So. 2d 691 (La. App. 2001) to underscore Plaintiff’s argument:

This rationale can best be understood by analyzing the write-offs in two situations: one in which a tortfeasor injures an uninsured victim and the other in which the same tortfeasor, in the same manner and to the same extent, injures an insured victim. Unless the write-offs are considered collateral sources, the tortfeasor would be relieved of his liability to the insured victim to the extent of the amount of the write-offs. The argument that there is no underlying obligation for plaintiff to pay the amount of the write-offs and, therefore, the plaintiff should not be allowed to benefit from a non-existent debt, fa[i]ls because the effect of this reasoning results in a diminution of the tortfeasor's liability vis-à-vis an insured victim when compared with the same tortfeasor's liability vis-à-vis an uninsured victim.

Another Louisiana case, Bozeman v. Louisiana, 879 So.2d 692 (La. 2004) tightens this analysis further:

If we were to permit a tortfeasor to mitigate damages with payments from plaintiff's insurance, [the] plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. [The defendant] should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance.

The Indiana Supreme Court disagreed, relying on the fact that under the current system we have in this country, a doctor’s medical bills do not equate to cost. But this makes every medical bill unreasonable on some level. Should the law be that you cannot introduce medical bills because the whole system is screwed up? I just don’t think it makes any sense.

Continue reading "Collateral Source Rule Under Attack in Indiana" »

Michigan Lawyers Weekly published an article titled “Populist juries side with plaintiffs.” (No web link available.)

This title got my attention because I have been speculating about the impact our economic troubles are having on jury verdicts. The thesis of the article appears to be that juries are more likely to side with plaintiffs in this economy, but are less likely to give large damage verdicts. Although, it quotes one lawyer saying he got a larger verdict than he asked for, which he attributed to the economy.

Unfortunately, the article is just anecdotes from plaintiffs’ personal injury lawyers who have recently received good verdicts. This is not exactly the target audience for a fair look at the issue. The lack of hard evidence is not the fault of Michigan Lawyers Weekly. The economy really turned in October with the meltdown in the financial markets, and there is just not a lot of data since then that has been collected and analyzed.

Continue reading "Personal Injury Jury Verdicts and the Recession" »

The Drug Recall Lawyer Blog has a post today supplementing/rebutting Mark Herrmann's blog post on the Drug and Device Law Blog on the Daubert issues in the Bausch & Lomb eye infection cases. Mark posted his blog at 5:00 a.m. and John responded a few hours later.

I don't think the Obama campaign had a better rapid response.

Our law firm is not involved in the Bousch & Lomb eye infection cases.

The Doctors Company provides a list by Dr. Richard E. Anderson of 39 ways for doctors to get sued for for not properly diagnosing breast cancer or failure to properly treating breast cancer after it has been diagnosed (via Day on Torts, via Eric Turkewitz's New York Personal Injury Attorney Blog).

As John Day points out, this is a good checklist for lawyers screening potential breast cancer malpractice cases.

The Maryland Daily Record reports that a Frederick County jury awarded nearly $4 million to a boy in a malpractice lawsuit claiming the child’s cerebral palsy was caused by his doctors’ failure to properly monitor his heartbeat before delivery. The jury’s verdict was against an ER doctor and an obstetrician. Three nurses, a third doctor - another ER doctor - and Frederick Memorial Hospital were not found liable.

The nature of the claims for at least two of the doctors (I’m not sure of the claims against the third who was not held responsible) that were allegedly a substantial contributing factor in the child’s cerebral palsy were different. The emergency room doctor was ostensibly told of the concern about the mother at 5:45 a.m. but did not see or evaluate her. The obstetrician allegedly was told about the concerns with the patient at 7:00 a.m. but did not see her or order that she be sent to labor and delivery.

Yet all three doctors were represented by the same malpractice lawyer. As I have written before, Defendants’ lawyers are moths to the flame of presenting a united front against Plaintiffs. But I would think that the obstetrician would have liked to say, “No one did anything wrong but, sure, I relied on part on the fact that I assumed the ER doctor would have looked at the problem if there were immediate concerns.”

Now, that exact defense might be inapplicable to the facts of this malpractice case but some derivative version of that defense is almost invariably applicable when a medical malpractice lawsuit makes allegations against different doctors. Again, I do not know all of facts and there could certainly be other facts present in this cerebral palsy case that would make one malpractice lawyer handling the claims of all three doctors an understandable strategy. This is obviously Monday morning quarterbacking after a bad medical malpractice verdict - which is incredibly easy to do. The malpractice lawyer who represented the doctors is considered one of the best medical malpractice lawyers in Maryland. But even if there are facts I don't know that would change my analysis in this case, the principle I am talking about still holds true: defendants are almost invariably better off having their own lawyer to at least give them the easy option of jumping ship on the "we are all in this together" boat.

Continue reading "Cerebral Palsy Verdict in Frederick" »

Zinc is common enough—it is even a dietary requirement. Humans should typically ingest between eight and eleven milligrams per day (often through red meat, nuts and grains). However, lawsuits alleging zinc toxicity of denture creams are showcasing how too much of a good thing can be harmful. A study in Neurology reports that some patients who used denture cream were exposed to at least 330 milligrams of zinc daily—far more than the maximum daily allowance of 40 milligrams. This and other studies form the basis for many of the existing denture cream lawsuits.

There are approximately eleven denture cream lawsuits filed against Glaxo Smith Kline and Proctor and Gamble for their denture cream products—Poligrip and Fixodent. The denture cream lawyers generally allege that the denture cream manufacturers failed to appropriately warn consumers about the risks of zinc toxicity. One defense is predictable—the plaintiffs did not use the product in accordance with the instructions. However, that defense lawyers' common argument - blame the victim - ignores the fact that a large portion of the denture-wearing population (34 million Americans) have somewhat ill-fitting dentures. The only way to keep them in place is a generous application of denture cream. This is common knowledge. Those people were never warned of the dangers of using denture cream beyond the instructions. From a consumer standpoint, a product that goes in your mouth must be safe to use. Who among us would think of a problem like zinc toxicity from denture cream?

So, here’s the science: zinc in denture cream is absorbed through the gums. High levels of zinc inhibit copper absorption, which can cause a copper deficiency and anemia (weakness). It can also reduce the function of the immune system. Among the more serious effects are paralysis and nerve damage. Symptoms can include numbness or tingling, and lack of balance. One plaintiff claiming injuries from denture cream, a man from east Texas, can barely walk, and only with support.

Though reducing zinc intake to normal levels can help, oftentimes the damage is not reversible, and there is no cure. Victims injured by denture cream may have extensive medical and other needs, which they cannot afford on their own. For example, they may need wheelchairs, transportation, and help working around the house or performing normal activities. Regardless, these are significant injuries that severely limit victims’ independence.