Maryland Injury Lawyer Blog

I'm pleased to report that an article that John Bratt and I wrote has been accepted for publication in December in Trial, the flagship publication for the American Association of Justice. The article is about mediations in catastrophic personal injury cases.

Sorry for the self congratulatory, as opposed to substantive, post. I'm walking into a mediation (in a catastrophic personal injury case) in the next 25 minutes.

Sean Wajert's MassTortDefense blog reports that Bayer moved last week to dismiss the master complaint in the federal MDL involving combination aspirin products pending in New York.

Plaintiff's' lawyers in this MDL allege Bayer marketed combination aspirin and dietary supplement products without approval from the FDA and deceived the plaintiffs and putative class members with respect to the safety and efficacy of the products.

So the plaintiffs used these products and suffered serious injury which is why we are making a federal case out of this? Not really. Instead, plaintiffs claim damages because they say they would not have purchased these products if they had known that Bayer did not file a new NDA for each of these combination products, but instead relied on prior FDA review.

I'm sitting in the back row but I'm just not a huge fan of lawsuits against drug companies where no one has actually been injured. I also realize that complex litigation with what I'm sure are sophisticated issues cannot be reduced to a tag line like, "C'mon aspirin has been around for a zillion years." That said, aspirin has been around for like a zillion years.

I have been interested for a while in how the recession is impacting jury verdicts. Back in June, I wrote about a few articles that drew differing conclusions and I pointed out that neither had any meaningful statistical evidence that supported their claims.

The Wisconsin Law Journal had an article on Monday suggesting that "the chances of getting a favorable jury verdict are as good as they have ever been." They interviewed one accident lawyer who claims this is "especially true in soft tissue injury cases, which include sprains, strains and 'whiplash.'"

While there certainly are good soft tissue verdicts, not many Maryland accident lawyers are racing to the courthouse steps to try these cases, particularly those that are not in Prince George's County or Baltimore City, because they are almost invariably hard sells to a jury and because they typically end up in District Court where there is a bench trial. Juries, often understandably, are just not big fans of whiplash injuries.

I'd be really curious to know how many soft tissue injury jury trials the accident lawyers quoted in this article have tried since the recession. It would not be enough to draw meaningful conclusions as to what the trend has been since October, 2008.

I also think the article is a not so thinly veiled effort to dig for data to support their cause when there is none.

According to data from Florida-based Jury Verdict Research, which maintains a national database of personal injury verdicts and settlements, the median plaintiffs' verdict in 2007 (the most recent year available) was $40,000, an increase of more than $5,000 from 2006. Head-injury verdicts, which include cases involving concussions and head lacerations, jumped from a national median of $12,775 in 2006 to $15,900 in 2007, the highest figure since 2003.

First, there was no meaningful recession talk in 2007 that would lead to a shift in jury outcomes. The idea of a recession did not grip the country until the financial meltdowns last October. Moreover, cherry picking out head injury verdicts seems disingenuous to me.

The article also provides the defense lawyer view that there has not been a meaningful difference in verdicts because of the recession, quoting two Wisconsin defense lawyers.

My best guess based on our law firm's experience: juries are not awarding any more or any less because of the recession.

An article in Slate raises an interesting question: are doctors overpaid? Unquestionably, the article points out, doctors in the United States make a lot of money relative to doctors in other countries. American doctors make four times what French doctors earn. Four times! Comparatively, the gap between what doctors make and rest of us make is larger in the United States than in other countries.

The numbers are eye popping. In the 1990s, the ratio of the doctor's income compared to the American employee's income was about 5.5. In France, it is 1.9. In Great Britain, it is only 1.4. As I wrote last week in my response to Dr. George Hossfeld's email, the top five highest paying jobs in the United States are all doctors.

Is it a travesty that one profession makes 5.5 times what the rest of us make? I don't think so. I think doctors should make a lot of money because in the big circle of life, it is more important that doctors do their job well than at least 99% of the rest of us, and we need to recruit the best and the brightest. So I'm cool with doctors making a lot of money. What I have a harder time digesting, however, is the suggestion that doctors are not making enough money, so we should turn our civil justice system - that has been in the works for hundreds of years - on its head so doctors can make more money.

The new popular wisdom that gained currency last year is that doctors who apologize for their mistakes are less likely to face a medical malpractice lawsuit than doctors who refuse to come clean. This supports what medical malpractice lawyers have long claimed: patients are often most angered by concealment of the malpractice and the concern that it will happen again to another patient.

KevinMD reports today an even more updated conventional wisdom, citing a study presented in the Journal of General Internal Medicine that says there is likely no correlation between a patient's intent to bring a medical malpractice lawsuit and whether the doctor apologized.

I question the methodology of the study which relied on videos of actors pretending to be doctors with people trying to put themselves in the shoes of malpractice victims. A controlled study like this really takes the emotion out of a case and ignores the powerful dynamics of a relationship between a doctor and a patient (and the abject suffering experienced by most medical malpractice plaintiffs). You can't manufacturer that in a "make believe" study and expect meaningful data that translates to the real world.

The results from the University of Michigan and the University of Illinois contradict this Journal of General Internal Medicine study. At Michigan, one of the first to experiment with full disclosure of malpractice, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001. The number of medical malpractice lawsuits against the University of Illinois has dropped by half in two years after it started its program.

I suspect that apologies do help, but in the end, it does not change the obvious: when you hurt someone - either in the operating room or when you bump into them on the street - apologizing is the right thing to do. This social contract we all signed should really trump the question of whether malpractice lawsuits increase or decrease.

I have put on-line Laura Zois' cross examination of the defendant driver in a Baltimore City truck accident case tried last month in which the Plaintiff received a verdict of over $1 million. The case has since settled.

This truck driver cross examination underscores that truck accident lawyers need to know the applicable trucking regulations inside and out. As you will see if you read the cross-examination, this red light/green light truck accident case was arguably won based on an obscure trucking regulation. If you are a car accident lawyer and you think, "Gee, car, truck, it is all pretty much the same thing," you are going to miss a ton of angles that could make or break your case.

I had a great morning this morning. I arrived excited and ready to attack the day. This was the email in my in-box:

Let's start with the petty. We have a guy whose email address is his job as an emergency room doctor. Proves nothing. But it does make you wonder if Dr. Hossfeld is just a little too excited about being Mr. Doctor. People like that scare me. I'm not a fan of summarizing my life in an email address or a bumper sticker. If I did, it would have the names of my family and friends on it and that would be too long to type.

Let's move on from the petty to the substantive because I certainly could be reading too much into an email address. We have four sentences, so let's break them down and overanalyze them to get ready for the NFL pre-game shows on Sunday. We will leave out the "hysterical laughter at every attempt at a joke from everyone in the studio" part:

Continue reading "Dr. George Hossfeld Comes After Medical Malpractice Lawyers... and My Family" »

Above the Law has a post of discussing a thread of comments to another blog post about being an insurance defense lawyer. Basically the question is whether the "low-end of insurance defense" is "toxic." I'm not entirely sure what is meant by "low-end," but I'm pretty sure I've been the plaintiffs' lawyer in cases that would fit this commentator's definition.

I guess it all depends on what you mean by toxic. But if I were State Farm, Allstate or GEICO, and I had a big trial coming up, I would want my average in-house lawyer to try the case over the average big firm litigation lawyer. The vast majority of the in-house insurance lawyers know exactly how to try a case. There are also a lot of fantastic big firm trial lawyers, too. But an in-house insurance defense firm is going to have more depth. There are a lot of big firm litigation lawyers who have just never gotten even a modicum of real trial experience and just don't have a clue how to try a case.

President Obama laid out the specifics of what he thinks about medical malpractice tort reform tonight. Well, not really. Let's just say President Obama is keeping his options open.

The trial balloon Obama he floated was to test out “a range of ideas” to bring down the cost of medical malpractice insurance for doctors. Disturbingly, he gave a huge shout out to George Bush's view of this problem, saying he would adopt an idea from President Bush to set up demonstration projects in some states to test ways to cut malpractice claims.

I don't know what this means. I don't think it means medical malpractice caps or other significant tort reform. But I don't know if President Obama really knows what he means yet, either.

• The Theory That President Obama Will Flip on Medical Malpractice Tort Reform (and why I don't believe it)
• Anticipation of First Obama Tort Reform Speech (June 11, 2009 post)
• Post Obama's Malpractice Tort Reform Speech in June (I breathe a sigh of relief when he says no malpractice caps)
• President Obama's Views as an Illinois Senator (insight into where President Obama may be on tort reform and, specifically, caps in malpractice cases)

"The president will talk about meaningful malpractice reform tonight. What I hope that does is cause Republicans to understand that we're close to getting something truly significant done for the American people, truly significant for those struggling with the high cost of health insurance," White House spokesman Robert Gibbs said this morning on "Fox Morning News."

Personally, I do not think President Obama's tort reform is going to include medical malpractice caps. If he flips, he is going to lose Democrats that he needs to get health care reform passed and everything else he wants to do. But I really don't know.

• The Theory That Obama Will Flip on Tort Reform (and why I don't believe it)
• Anticipation of First Obama Tort Reform Speech (June 11, 2009 post)
• Post Obama's Malpractice Tort Reform Speech in June (I breathe a sigh of relief when he says no caps)
• President Obama's Views as an Illinois Senator (scary insight into where President Obama may be on tort reform in malpractice cases)

One of my post Labor Day resolutions is to blog more often to continue to grow the Maryland Injury Lawyer Blog readership. But I'm still trying to get trying to get back into the flow of things today, so instead of a substance post, I'll just leech off the work of others:

For more information on the Yazmin/Ocella/Yaz lawsuits, visit our Yaz attorney claim information center which provides a general overview the Yaz lawsuits, an update on what plaintiffs' Yaz lawyers are doing in these cases, an explanation of the how the Yaz lawsuits will proceed, the latest medical research on Yaz, and medical journal information on the potential association between Yaz and gallbladder injuries.

LawyerUSA reports on a $24 million settlement between a Florida company and the Federal Trade Commission over allegations that it made illegal, pre-recorded "robo-calls," selling what the feds say was questionable coverage.

I'm fine with the federal government policing this stuff, and, in principle, I'm fine with lawyers bringing claims that help the government enforce our rules.

Still, as a matter of practice, I find it annoying. I remember a guy standing up at a trial lawyers' seminar talking about a Maryland procedure issue in a case where a guy got an unwanted fax. The lawyer said that he "had a client where [such and such] motion was filed...." I'm thinking to myself, "I have clients. This guy does not have a client. He has a guy who got a fax."

Again, it is probably a good thing private lawyers are aiding governmental effort on these consumer issues. And I do not like the calls, either. But it just seems so petty to me. So you get a few extra faxes or have to screen an occasional robo-call? I can recycle the faxes, and caller ID was invented for a reason.

I might lose a few consumer protection lawyer readers with this rant. In fact, I came very close to deleting the email. But it is the opinion I have and if I lose a few readers, hopefully a few others will appreciate the candor and add the Maryland Injury Lawyer Blog to your RSS feed.

Tragic and bizarre lawsuit in Baltimore City where a father sued his son's stepfather for leaving a loaded gun in the house, which the boy used to commit suicide. Incredibly, the father won a $50,000 verdict.

Agree or disagree with him, the father certainly was willing to go to great lengths to make his point that I largely support: guns are dangerous and you cannot leave a gun and bullets out for minor children - or anyone else - to grab. Whether this should equate to legal liability on behalf of the gun owner is above my pay grade.

I actually meant to post this blog on the Maryland Lawyer Blog where I post on non-personal injury lawyer related issues.

While I'm plugging Miller & Zois blogs, if you have any interest in drug and medical device litigation, you should take a look of John Cord's Drug Recall Lawyer Blog that is growing leaps and bounds every day. Another interesting Miller & Zois blog to read is John Bratt's extremely candid Baltimore Injury Lawyer Blog which covers topics similar to the Maryland Injury Lawyer Blog from a different perspective.

On Friday, the Maryland Court of Special Appeals reversed a $3 million jury verdict in Cecil County v. Dorman. That statement overmagnifies the ruling. The jury verdict of $3 million is misleading because Maryland’s Local Government Tort Claim Act limited the actual verdict to $200,000. But the legal issues presented in the case are of interest to Maryland accident attorneys who are looking for creative solutions to limited insurance coverage in catastrophic accident cases. This case closed down one potential defendant: the utility pole that has been there forever should not have been there when my client hit it.

The case involved a motorcycle accident that occurred near the intersection of Nottingham Road and Pulaski Highway (Route 40). Plaintiff suffered severe injuries which required the amputation of his right leg. The defendant driver’s negligence was not in serious question, but claims were maintained against Verizon and Delmarva Power and Light Company with respect to the location of the utility pole that Plaintiff had hit, which had exacerbated Plaintiff’s injuries. Plaintiff’s lawyer argued that the location of the pole was unsafe. Plaintiff's accident lawyer further argued that is Cecil County's duty to maintain its roadways in good repair and free from hazards or defects was ongoing so the fact that the pole had been put in 40 years go was no defense. Accordingly, there is a duty imposed on Cecil County when a utility pole is in such close proximity to the road that it was an "accident waiting to happen."

Continue reading "Maryland Motorcycle Accident Verdict Overturned" »